[Federal Register Volume 79, Number 70 (Friday, April 11, 2014)]
[Rules and Regulations]
[Pages 20315-20743]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-29579]
[[Page 20315]]
Vol. 79
Friday,
No. 70
April 11, 2014
Part II
Department of Labor
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Occupational Safety and Health Administration
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29 CFR Parts 1910 and 1926
Electric Power Generation, Transmission, and Distribution; Electrical
Protective Equipment; Final Rule
Federal Register / Vol. 79 , No. 70 / Friday, April 11, 2014 / Rules
and Regulations
[[Page 20316]]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Parts 1910 and 1926
[Docket No. OSHA-S215-2006-0063]
RIN 1218-AB67
Electric Power Generation, Transmission, and Distribution;
Electrical Protective Equipment
AGENCY: Occupational Safety and Health Administration (OSHA), Labor.
ACTION: Final rule.
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SUMMARY: OSHA last issued rules for the construction of transmission
and distribution installations in 1972. Those provisions are now out of
date and inconsistent with the more recently promulgated general
industry standard covering the operation and maintenance of electric
power generation, transmission, and distribution lines and equipment.
OSHA is revising the construction standard to make it more consistent
with the general industry standard and is making some revisions to both
the construction and general industry requirements. The final rules for
general industry and construction include new or revised provisions on
host employers and contractors, training, job briefings, fall
protection, insulation and working position of employees working on or
near live parts, minimum approach distances, protection from electric
arcs, deenergizing transmission and distribution lines and equipment,
protective grounding, operating mechanical equipment near overhead
power lines, and working in manholes and vaults. The revised standards
will ensure that employers, when appropriate, must meet consistent
requirements for work performed under the construction and general
industry standards.
The final rule also revises the general industry and construction
standards for electrical protective equipment. The existing
construction standard for the design of electrical protective
equipment, which applies only to electric power transmission and
distribution work, adopts several national consensus standards by
reference. The new standard for electrical protective equipment, which
matches the corresponding general industry standard, applies to all
construction work and replaces the incorporation of out-of-date
consensus standards with a set of performance-oriented requirements
that is consistent with the latest revisions of the relevant consensus
standards. The final construction rule also includes new requirements
for the safe use and care of electrical protective equipment to
complement the equipment design provisions. Both the general industry
and construction standards for electrical protective equipment will
include new requirements for equipment made of materials other than
rubber.
OSHA is also revising the general industry standard for foot
protection. This standard applies to employers performing work on
electric power generation, transmission, and distribution
installations, as well as employers in other industries. The final rule
removes the requirement for employees to wear protective footwear as
protection against electric shock.
DATES: The final rule becomes effective on July 10, 2014. (Certain
provisions have compliance deadlines after this date as explained later
in this preamble.)
ADDRESSES: In accordance with 28 U.S.C. 2112(a), the Agency designates
the Associate Solicitor of Labor for Occupational Safety and Health,
Office of the Solicitor of Labor, Room S4004, U.S. Department of Labor,
200 Constitution Avenue NW., Washington, DC 20210, to receive petitions
for review of the final rule.
FOR FURTHER INFORMATION CONTACT:
General information and press inquiries: Mr. Frank Meilinger,
Office of Communications, Room N3647, OSHA, U.S. Department of Labor,
200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-
1999.
Technical information: Mr. David Wallis, Directorate of Standards
and Guidance, Room N3718, OSHA, U.S. Department of Labor, 200
Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-1950
or fax (202) 693-1678.
For additional copies of this Federal Register document, contact
OSHA, Office of Publications, U.S. Department of Labor, Room N3101, 200
Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-
1888. Electronic copies of this Federal Register document are available
at http://www.regulations.gov. Electronic copies of this Federal
Register document, as well as news releases and other relevant
documents, are available at OSHA's Web page at http://www.osha.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Executive Summary
A. Introduction
B. Need for Regulation
C. Affected Establishments
D. Benefits, Net Benefits, and Cost Effectiveness
E. Cost Effectiveness
F. Compliance Costs
G. Economic Impacts
H. Final Regulatory Flexibility Analysis
II. Background
A. Acronyms and Abbreviations
B. Need for the Rule
C. Accident Data
D. Significant Risk and Reduction in Risk
III. Development of the Final Rule
A. History of the OSHA Standards
B. Relevant Consensus Standards
C. Advisory Committee on Construction Safety and Health
IV. Legal Authority
V. Summary and Explanation of the Final Rule
A. Section 1926.97, Electrical Protective Equipment
B. Subpart V, Electric Power Transmission and Distribution
C. Part 1910, Revisions
D. Part 1926, Removal of Incorporations by Reference
E. Part 1926, Subpart CC Revisions
VI. Final Economic Analysis and Regulatory Flexibility Analysis
A. Introduction
B. Need for the Rule
C. Examination of Alternative Regulatory Approaches
D. Profile of Affected Industries
E. Benefits, Net Benefits, and Cost Effectiveness
F. Technological Feasibility
G. Costs of Compliance
H. Final Regulatory Flexibility Analysis
I. References
VII. Federalism
VIII. Unfunded Mandates
IX. Consultation and Coordination With Indian Tribal Governments
X. Office of Management and Budget Review Under the Paperwork
Reduction Act of 1995
A. Information Collection Request for the Proposed Rule
B. Information Collection Requirements in the Final Rule
XI. State-Plan Requirements
XII. Dates
A. The New Requirements for Transferring Information Between
Host Employers and Contract Employers (Sec. Sec. 1926.950(c) and
1910.269(a)(3))
B. Revised Provisions on the Use of Fall Protection Systems
(Sec. Sec. 1926.954(b)(3)(iii) and (b)(3)(iv) and
1910.269(g)(2)(iv)(C), and (g)(2)(iv)(D))
C. Revised Requirements for Minimum Approach Distances
(Sec. Sec. 1926.960(c)(1) and 1910.269(l)(3))
D. New Requirements for Protecting Employees From the Hazards
Associated with Electric Arcs (Sec. Sec. 1926.960(g) and
1910.269(l)(8))
XIII. Authority and Signature
Executive Summary
A. Introduction
OSHA last issued rules for the construction of transmission and
[[Page 20317]]
distribution installations in 1972. Those provisions are now out of
date and inconsistent with the more recently promulgated general
industry standard covering the operation and maintenance of electric
power generation, transmission, and distribution lines and equipment.
OSHA is revising the construction standard to make it more consistent
with the general industry standard and is making some revisions to both
the construction and general industry requirements. The final rules for
general industry and construction include new or revised provisions on
host employers and contractors, training, job briefings, fall
protection, insulation and working position of employees working on or
near live parts, minimum approach distances, protection from electric
arcs, deenergizing transmission and distribution lines and equipment,
protective grounding, operating mechanical equipment near overhead
power lines, and working in manholes and vaults. The revised standards
will ensure that employers, when appropriate, must meet consistent
requirements for work performed under the construction and general
industry standards.
The new provisions on host employers and contractors include
requirements for host employers and contract employers to exchange
information on hazards and on the conditions, characteristics, design,
and operation of the host employer's installation. These new provisions
also include a requirement for host employers and contract employers to
coordinate their work rules and procedures to protect all employees.
The revised provisions on training add requirements for the degree of
training to be determined by the risk to the employee for the hazard
involved and for training line-clearance tree trimmers and remove the
existing requirement for the employer to certify training. The revised
requirements for job briefings include a new requirement for the
employer to provide information about existing characteristics and
conditions to the employee in charge. The revised fall protection
provisions include new requirements for the use of fall restraint
systems or personal fall arrest systems in aerial lifts and for the use
of fall protection equipment by qualified employees climbing or
changing location on poles, towers, or similar structures. The revised
provisions on insulation and working position of employees working on
or near live parts include new requirements relating to where an
employee who is not using electrical protective equipment may work. The
revised provisions on minimum approach distances include a new
requirement for the employer to determine maximum anticipated per-unit
transient overvoltages through an engineering analysis or, as an
alternative, assume certain maximum anticipated per-unit transient
overvoltages. These provisions also replace requirements for specified
minimum approach distances with requirements for the employer to
establish minimum approach distances using specified formulas. The new
provisions for protection from electric arcs include new requirements
for the employer to: Assess the workplace to identify employees exposed
to hazards from flames or from electric arcs, make reasonable estimates
of the incident heat energy to which the employee would be exposed,
ensure that the outer layer of clothing worn by employees is flame
resistant under certain conditions, and generally ensure that employees
exposed to hazards from electric arcs wear protective clothing and
other protective equipment with an arc rating greater than or equal to
the estimated heat energy. The revised provisions on deenergizing
transmission and distribution lines and equipment clarify the
application of those provisions to multiple crews and to deenergizing
network protectors. The revised requirements for protective grounding
now permit employers to install and remove protective grounds on lines
and equipment operating at 600 volts or less without using a live-line
tool under certain conditions. The revised provisions for operating
mechanical equipment near overhead power lines clarify that the
exemption from the requirement to maintain minimum approach distances
applies only to the insulated portions of aerial lifts. The revised
provisions on working in manholes and vaults clarify that all of the
provisions for working in manholes also apply to working in vaults and
include a new requirement for protecting employees from electrical
faults when work could cause a fault in a cable.
The final rule also revises the general industry and construction
standards for electrical protective equipment. The existing
construction standard for the design of electrical protective
equipment, which applies only to electric power transmission and
distribution work, adopts several national consensus standards by
reference. The new standard for electrical protective equipment applies
to all construction work and replaces the incorporation of out-of-date
consensus standards with a set of performance-oriented requirements
that is consistent with the latest revisions of the relevant consensus
standards. The final construction rule also includes new requirements
for the safe use and care of electrical protective equipment to
complement the equipment design provisions. Both the general industry
and construction standards for electrical protective equipment will
include new requirements for equipment made of materials other than
rubber.
OSHA is also revising the general industry standard for foot
protection. This standard applies to employers performing work on
electric power generation, transmission, and distribution
installations, as well as employers in other industries. The final rule
removes the requirement for employees to wear protective footwear as
protection against electric shock.
B. Need for Regulation
Employees doing work covered by the final rule are exposed to a
variety of significant hazards that can and do cause serious injury and
death. As explained fully in Section II.B, Need for the Rule, later in
this preamble, after carefully weighing the various potential
advantages and disadvantages of using a regulatory approach to reduce
risk, OSHA concludes that in this case mandatory standards represent
the best choice for reducing the risks to employees. In addition,
rulemaking is necessary in this case to replace older existing
standards with updated, clear, and consistent safety standards.
Inconsistencies between the construction and general industry standards
can create difficulties for employers attempting to develop appropriate
work practices for their employees. For example, an employer replacing
a switch on a transmission and distribution system is performing
construction work if it is upgrading the cutout, but general industry
work if it is simply replacing the cutout with the same model. Under
the existing standards, different requirements apply depending upon
whether the work is construction or general industry work. Under the
final rule, the requirements are the same.
C. Affected Establishments
The final rule affects establishments in a variety of different
industries involving electric power generation, transmission, and
distribution. The rule primarily affects firms that construct, operate,
maintain, or repair electric power generation, transmission, or
distribution installations. These firms
[[Page 20318]]
include electric utilities, as well as contractors hired by utilities
and primarily classified in the construction industry. In addition,
potentially affected firms are found in a variety of manufacturing and
other industries that own or operate their own electric power
generation, transmission, or distribution installations as a secondary
part of their business operations. The rule also affects establishments
performing line-clearance tree-trimming operations.
D. Benefits, Net Benefits, and Cost Effectiveness
OSHA expects the final rule to result in an increased degree of
safety for the affected employees, thereby reducing the numbers of
accidents, fatalities, and injuries associated with the relevant tasks
and reducing the severity of certain injuries, such as burns or
injuries that employees could sustain as a result of an arrested fall,
that may still occur during the performance of some of the affected
work procedures.
An estimated 74 fatalities and 444 serious injuries occur annually
among employees involved in the electric power generation,
transmission, and distribution work addressed by the provisions of this
rulemaking. Based on a review and analysis of the incident reports
associated with the reported injuries and fatalities, OSHA expects full
compliance with the final rule to prevent 79.6 percent of the relevant
injuries and fatalities, compared with 52.9 percent prevented with full
compliance with the existing standards. Thus, OSHA estimates that the
final rule will prevent approximately 19.75 additional fatalities and
118.5 additional serious injuries annually. Applying an average
monetary value of $62,000 per prevented injury and a value of $8.7
million per prevented fatality results in estimated monetized benefits
of $179.2 million annually.
OSHA estimated the net monetized benefits of the final rule to be
about $129.7 million annually when costs are annualized at 7 percent
($179.2 million in benefits minus $49.5 million in costs), and $132.0
million when costs are annualized at 3 percent ($179.2 million in
benefits minus $47.1 million in costs). Note that these net benefits
exclude any unquantified benefits associated with revising existing
standards to provide updated, clear, and consistent regulatory
requirements for electric power generation, transmission, and
distribution work. OSHA believes that the updated standards are easier
to understand and to apply. Accordingly, the Agency expects the final
rule to improve safety by facilitating compliance.
Table 1 summarizes the costs, benefits, net benefits, and cost
effectiveness of the final rule.
Table 1--Net Benefits and Cost Effectiveness *
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7 percent 3 percent
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Annualized Costs:
Calculating Incident Energy $2.2 million...... $1.8 million.
and Arc-Hazard Assessment
(Arc-Hazard Assessment).
Provision of Arc-Flash $17.3 million..... $15.7 million.
Protective Equipment.
Fall Protection............. $0.6 million...... $0.4 million.
Host-Contractor $17.8 million..... $17.8 million.
Communications.
Expanded Job Briefings...... $6.7 million...... $6.7 million.
Additional Training......... $3.0 million...... $2.7 million.
Other costs for employees $0.2 million...... $0.2 million.
not already covered by Sec.
1910.269.
MAD Costs................... $1.8 million...... $1.8 million.
Total Annual Costs...... $49.5 million..... $47.1 million.
Annual Benefits:
Number of Injuries Prevented 118.5............. 118.5.
Number of Fatalities 19.75............. 19.75.
Prevented.
Monetized Benefits (Assuming $179.2 million.... $179.2 million.
$62,000 per injury and $8.7
million per fatality
prevented.
OSHA standards that are Unquantified...... Unquantified.
updated and consistent.
Total Annual Benefits... 118.5 injuries and 118.5 injuries and
19.75 fatalities 19.75 fatalities
prevented. prevented.
Net Benefits (Benefits minus $129.7 million.... $132.0 million.
Costs):.
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* Totals may not equal the sum of the components due to rounding.
Source: Office of Regulatory Analysis, OSHA. Details provided in text.
E. Cost Effectiveness
OSHA estimates that compliance with the final rule will result in
the prevention of an one fatality and six injuries per $2.4 million in
costs (using a 7-percent annualization rate) and one fatality and six
injuries per $2.2 million in costs (using a 3-percent annualization
rate).
F. Compliance Costs
The estimated costs of compliance with this rule represent the
additional costs necessary for employers to achieve full compliance.
They do not include costs for employers that are already in compliance
with the new requirements imposed by the final rule; nor do they
include costs employers must incur to achieve full compliance with
existing applicable requirements.
OSHA based the Preliminary Regulatory Impact Analysis and Initial
Regulatory Flexibility Analysis (PRIA) for the proposed rule, in part,
on a report prepared by CONSAD Corp. (Exhibit 0080) under contract to
OSHA. Eastern Research Group, Inc., (ERG) under contract to OSHA,
assisted in preparing the analysis of the final rule presented here.
With ERG's assistance, OSHA updated data on establishments, employment,
wages, and revenues, and updated the analyses in the final rule with
these new cost inputs. OSHA also calculated costs for provisions of the
final rule not accounted for in the PRIA. These costs are for the use
of upgraded fall protection equipment resulting from revised fall
protection requirements, the provision of arc-rated head and face
protection for some employees, the training of employees in the use of
new fall protection equipment, the calculation of minimum approach
distances, and, in some cases, the use of portable protective gaps
(PPGs) to comply with the new minimum approach-distance requirements.
The FEA also modifies the PRIA's approach
[[Page 20319]]
to estimating costs for arc-hazard assessments.
OSHA estimated the total annualized cost of compliance with the
present rulemaking to be between about $47.1 million (when costs are
annualized at 3 percent) and $49.5 million (when costs are annualized
at 7 percent). The final rule's requirements for employers to provide
arc-flash protective equipment account for the largest component of the
total compliance costs, at approximately $15.7 million to $17.2 million
(when costs are annualized at 3 and 7 percent, respectively). Other
nonnegligible compliance costs associated with the final rule include
costs related to host-contractor communications ($17.8 million), job
briefings ($6.7 million), training ($2.7 million to $3.0 million),
minimum approach distances ($1.8 million to $1.8 million), fall
protection ($0.4 million to $0.6 million), compliance with existing
Sec. 1910.269 for employees not already covered by that standard ($0.2
million), and arc-hazard assessments ($1.8 million to $2.2 million).
G. Economic Impacts
To assess the economic impacts associated with compliance with the
final rule, OSHA developed quantitative estimates of the potential
economic impact of the requirements in this rule on entities in each
affected industry. OSHA compared the estimated costs of compliance with
industry revenues and profits to provide an assessment of potential
economic impacts.
The costs of compliance for the final rule are not large in
relation to the corresponding annual financial flows associated with
the regulated activities. The estimated costs of compliance (when
annualized at 7 percent) represent about 0.007 percent of revenues and
0.06 percent of profits, on average, across all entities; compliance
costs do not represent more than 0.1 percent of revenues or more than
about 2 percent of profits in any affected industry.
The economic impact of the present rulemaking is most likely to
consist of a small increase in prices for electricity, of about 0.007
percent on average. It is unlikely that a price increase on the
magnitude of 0.007 percent will significantly alter the services
demanded by the public or any other affected customers or
intermediaries. If employers can substantially recoup the compliance
costs of the present rulemaking with such a minimal increase in prices,
there may be little effect on profits.
In general, for most establishments, it is likely that employers
can pass some or all of the compliance costs along in the form of
increased prices. In the event that unusual circumstances may inhibit
even a price increase of 0.1 percent (the highest estimated cost as a
percent of revenue in any of the affected industries), profits in any
of the affected industries would be reduced by a maximum of about 2
percent.
OSHA concludes that compliance with the requirements of the final
rule is economically feasible in every affected industry sector.
In addition, based on an analysis of the costs and economic impacts
associated with this rulemaking, OSHA concludes that the effects of the
final rule on international trade, employment, wages, and economic
growth for the United States are negligible.
H. Final Regulatory Flexibility Analysis
The Regulatory Flexibility Act, as amended in 1996 by the Small
Business Regulatory Enforcement Fairness Act, requires the preparation
of a Final Regulatory Flexibility Analysis for certain rules
promulgated by agencies (5 U.S.C. 601-612). Under the provisions of the
law, each such analysis must contain: (1) A succinct statement of the
need for, and objectives of, the rule; (2) A summary of the significant
issues raised by the public comments in response to the initial
regulatory flexibility analysis, a summary of the assessment of the
agency of such issues, and a statement of any changes made in the final
rule as a result of such comments; (3) a description and an estimate of
the number of small entities to which the rule will apply or an
explanation of why no such estimate is available; (4) a description of
the projected reporting, recordkeeping, and other compliance
requirements of the rule, including an estimate of the classes of small
entities that will be subject to the requirement, and the type of
professional skills necessary for preparation of the report or record;
and (5) a description of the steps the agency took to minimize the
significant economic impact on small entities consistent with the
stated objectives of applicable statutes, including a statement of the
factual, policy, and legal reasons for selecting the alternative
adopted in the final rule, and why the agency rejected each one of the
other significant alternatives to the rule considered by the agency
which affect the impact on small entities.
OSHA analyzed the potential impact of the final rule on small and
very small entities, as described further under the heading ``Final
Regulatory Flexibility Analysis,'' in Section VI, Final Economic
Analysis and Regulatory Flexibility Analysis, later in this preamble.
OSHA concludes that the compliance costs are equivalent to
approximately 0.086 percent of profits for affected small entities
generally, and less than approximately 2.9 percent of profits for small
entities in any particular industry, and approximately 0.39 percent of
profits for affected very small entities generally, and less than
approximately 5.61 percent of profits for very small entities in any
particular industry.
II. Background
A. Acronyms and Abbreviations
The following acronyms have been used throughout this document:
ACCSH Advisory Committee on Construction Safety and Health
AED automated external defibrillator
AGC Associated General Contractors of America
ALJ administrative law judge
ANSI American National Standards Institute
APPA American Public Power Association
ASTM American Society for Testing and Materials
BLS Bureau of Labor Statistics
BPA Bonneville Power Administration
CFOI Census of Fatal Occupational Injuries
CPL 02-01-038 the compliance directive for existing Sec. 1910.269,
CPL 02-01-038, ``Enforcement of the Electric Power Generation,
Transmission, and Distribution Standard'' (June 18, 2003, originally
CPL 2-1.38D)
CPR cardiopulmonary resuscitation
CRIEPI Central Research Institute of Electric Power Industry
EEI Edison Electric Institute
EIA Energy Information Administration
E.O. Executive Order
EPRI Electric Power Research Institute
ERG Eastern Research Group, Inc.
ESCI Electrical Safety Consultants International
Ex. Exhibit \1\
FCC Federal Communications Commission
FEA Final Economic Analysis and Regulatory Flexibility Analysis
FR flame-resistant \2\
[[Page 20320]]
FRA flame-resistant apparel
FRECC Farmers Rural Electric Cooperative Corporation
FRFA Final Regulatory Flexibility Analysis
FTE full-time equivalent [employee]
IBEW International Brotherhood of Electrical Workers
IEC International Electrotechnical Commission
IEEE Institute of Electrical and Electronic Engineers
IMIS OSHA's Integrated Management Information System
IRFA Initial Regulatory Flexibility Analysis
IRS Internal Revenue Service
ISEA International Safety Equipment Association
MAD minimum approach distance
MAID minimum air-insulation distance
MCC motor control center
MTID minimum tool-insulation distance
NA not applicable
NAHB National Association of Home Builders
NAICS North American Industry Classification System
NAM National Association of Manufacturers
NECA National Electrical Contractors Association
NEPA National Environmental Policy Act of 1969
NESC National Electrical Safety Code
NFPA National Fire Protection Association
NIOSH National Institute for Occupational Safety and Health
NRECA National Rural Electric Cooperative Association
OIRA Office of Information and Regulatory Affairs
OMB Office of Management and Budget
OSH Act (or the Act) Occupational Safety and Health Act of 1970
OSHA Occupational Safety and Health Administration
OSHRC Occupational Safety and Health Review Commission
PPE personal protective equipment
PPG portable protective gap
PRIA Preliminary Regulatory Impact Analysis and Initial Regulatory
Flexibility Analysis
PSM process safety management
p.u. per unit
RIN regulatory information number
SBA Small Business Administration
SBAR Panel (or Panel) Small Business Advocacy Review Panel
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\1\ Exhibits are posted on http://www.regulations.gov and are
accessible at OSHA's Docket Office, Docket No. OSHA-S215-2006-0063,
U.S. Department of Labor, 200 Constitution Avenue NW., Room N2625,
Washington, DC 20210; telephone (202) 693-2350. (OSHA's TTY number
is (877) 889-5627.) OSHA Docket Office hours of operation are 8:15
a.m. to 4:45 p.m., E.T.
Throughout this notice exhibit numbers are referred to in the
form Ex. XXXX, where XXXX is the last four digits of the full
document number on http://www.regulations.gov. For example, document
number OSHA-S215-2006-0063-0001 is referred to as Ex. 0001. Exhibit
numbers referred to as ``269-Ex.'' are from the record for the 1994
final rule on Sec. Sec. 1910.137 and 1910.269 and are contained in
Docket Number OSHA-S015-2006-0645.
\2\ In citations, such as 70 FR 34822, ``FR'' means ``Federal
Register.''
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SBREFA Small Business Regulatory Enforcement Fairness Act
SER small entity representative
SIC Standard Industrial Classification
T maximum transient overvoltage, which is defined as the ratio of
the 2-percent statistical switching overvoltage expected at the
worksite to the nominal peak line-to-ground voltage of the system
TCIA Tree Care Industry Association
the 1994 Sec. 1910.269 rulemaking the rulemaking in which existing
Sec. Sec. 1910.137 and Sec. 1910.269 were developed and published
on January 31, 1994
Tr. Transcript page number or numbers from the March 6-14, 2006,
public hearing on the proposed rule \3\
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\3\ Exhibit numbers 0509 through 0515.
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Tr2. Transcript page number or numbers from the October 28, 2009,
public hearing on the limited reopening of the proposed rule \4\
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\4\ Exhibit number 0571.
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TVA Tennessee Valley Authority
ULCC Utility Line Clearance Coalition
USDA United States Department of Agriculture
UWUA Utility Workers Union of America
WCRI Worker Compensation Research Institute
Record citations. References in parentheses are to exhibits or
transcripts in the rulemaking record. Documents from the Subpart V
rulemaking record are accessible at the Docket Office under Docket
OSHA-S215-2006-0063 (originally Docket S-215). (The 2006 transcripts,
abbreviated as ``Tr.,'' are listed in this docket as ``exhibits'' 0509
through 0515. The 2009 transcript, abbreviated as ``Tr2.,'' is listed
as ``exhibit'' 0571.) Because the subpart V proposal was based in large
part on existing Sec. 1910.269, OSHA has also relied on the record
developed during the earlier rulemaking for that general industry
standard (the 1994 Sec. 1910.269 rulemaking). EEI ``incorporate[d]
into [the subpart V] record the entire record in . . . the record
underlying existing Section 1910.269'' (Ex. 0227). References in this
preamble that are prefixed by ``269'' are to exhibits and transcripts
in the rulemaking record from OSHA's 1994 rulemaking on Sec. 1910.137
and Sec. 1910.269 (59 FR 4320-4476, Jan. 31, 1994). These documents
are accessible at the Docket Office under Docket OSHA-S015-2006-0645
(originally Docket S-015).\5\
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\5\ Documents in the records, with the exception of copyrighted
material such as ASTM standards, are also generally available
electronically at www.regulations.gov. The subpart V and 1994 Sec.
1910.269 dockets are available at: http://www.regulations.gov/#!docketDetail;dct=FR+PR+N+O+SR+PS;rpp=250;po=0;D=OSHA-S215-2006-
0063 and http://www.regulations.gov/#!docketDetail;dct=FR+PR+N+O+SR+PS;rpp=250;po=0;D=OSHA-S015-2006-
0645, respectively.
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Some exhibits (see, for example, Exs. 0002, 0003, 0004, and 0400)
contain records of accidents that are relevant to work covered by the
final rule. In several instances in this preamble, OSHA has included
hyperlinks to accident descriptions from those exhibits. Those
hyperlinks link to one or more accident records in OSHA's IMIS system.
The hyperlinked pages contain the most recent version of those records,
which might have been edited since being placed in the record for this
rulemaking. Consequently, the accident descriptions could differ
slightly from the description included in the rulemaking record.
However, the accident record numbers in the hyperlinked page match the
accident record numbers in the relevant exhibit.
B. Need for the Rule
Employees performing work involving electric power generation,
transmission, and distribution are exposed to a variety of hazards,
including fall, electric shock, and burn hazards, that can and do cause
serious injury and death. These workers are often exposed to energized
parts of the power system, and the voltages involved are generally much
higher than voltages encountered in other types of work. OSHA estimates
that, on average, 74 fatalities and 444 serious injuries occur annually
among these workers. (See Section VI, Final Economic Analysis and
Regulatory Flexibility Analysis, later in the preamble, for a detailed
discussion of the methodology used to develop these estimates.)
Although some of these incidents may have been prevented with
better compliance with existing safety standards, OSHA concludes that
many, in fact almost half of, fatal and nonfatal injuries among
employees covered by the final rule would continue to occur even if
employers were in full compliance with existing standards. Discounting
incidents that would potentially have been prevented with compliance
with existing standards, an estimated additional 19.75 fatalities and
118.5 serious injuries will be prevented each year through full
compliance with the final rule. (See Section VI, Final Economic
Analysis and Regulatory Flexibility Analysis, later in the preamble,
for a detailed discussion of the methodology used to develop these
estimates.)
This rulemaking will have the additional benefit of providing
updated, clear, and consistent safety standards for electric power
generation, transmission, and distribution work. OSHA currently has
different standards covering construction and general industry work on
electric power transmission and distribution systems. In most
instances, the work practices used by employees are the same whether
they are performing construction or general industry work. Which
standard applies to a particular job depends upon whether the employer
is altering the system (construction work) or maintaining the system
(general industry work). For example, an employer replacing a cutout
(disconnect switch) on a transmission and distribution system is
performing construction work if it is upgrading the cutout, but general
industry work if it is simply replacing the cutout with the same model.
Since the work practices used by the employees would most
[[Page 20321]]
likely be identical, the applicable OSHA standards should be as similar
as possible. Inconsistencies between the construction and general
industry standards can create difficulties for employers attempting to
develop appropriate work practices for their employees. Currently, it
is conceivable that, for work involving two or more cutouts, different
and conflicting OSHA standards (that is, one for construction work, the
other for general industry work) might apply. For this reason,
employers and employees have told OSHA that it should make the two
standards more consistent with each other. This final rule does so.
(This issue is addressed in greater detail in the summary and
explanation for Sec. 1926.950, in Section V, Summary and Explanation
of the Final Rule, later in this preamble.)
Moreover, the final rule adds important updates to, and clarifies,
existing standards. The existing standards for the construction of
electric power transmission and distribution lines and equipment and
for electrical protective equipment are contained in subpart V of
OSHA's construction standards (29 CFR 1926.950 through 1926.960).
Subpart V was promulgated on November 23, 1972, around 40 years ago (37
FR 24880, Nov. 23, 1972). Some of the technology involved in electric
power transmission and distribution work has changed since then, and
the current standards do not reflect those changes. For example,
methods for determining minimum approach distances have become more
exact since 1972, and the minimum approach distances in existing Sec.
1926.950(c)(1) are not based on the latest methodology. The minimum
approach distances in the final rule are more protective and more
technologically sound than the distances specified in the existing
standard. Even the newer general industry standards on the operation
and maintenance of electric power generation, transmission, and
distribution installations (29 CFR 1910.269) and electrical protective
equipment (29 CFR 1910.137) are not entirely consistent with the latest
advances in technology.
Finally, the final rule clarifies certain confusing parts of the
regulations. See, for example, Wisconsin Elec. Power Co. v. OSHRC, 567
F.2d 735, 738 (7th Cir. 1977) (``[r]evision of the regulations by any
competent draftsman would greatly improve their clarity'').
C. Accident Data
OSHA has looked to several sources for information on accidents in
the electric utility industry in preparing this final rule. Besides
OSHA's own accident investigation files (recorded in the Agency's
Integrated Management Information System (IMIS)), statistics on
injuries are compiled by the Edison Electric Institute (EEI) and by the
International Brotherhood of Electrical Workers (IBEW). Additionally,
the Bureau of Labor Statistics (BLS) publishes accident data, including
incidence rates for total cases, lost-workday cases, and lost workdays,
and the National Institute for Occupational Safety and Health (NIOSH)
publishes accident data as part of its Fatality Assessment and Control
Evaluation Program.
To develop estimates of the potential benefits associated with the
standards during the proposal stage, CONSAD Corp., under contract to
OSHA, researched and reviewed potential sources of useful data. CONSAD,
in consultation with the Agency, determined that the most reliable data
sources for this purpose were OSHA's IMIS data and the Census of Fatal
Occupational Injuries developed by BLS. A majority of the accidents
reviewed by CONSAD involved electrocutions or shocks. In addition, a
significant percentage of victims (5.5 percent) suffered from burns to
their arms, abdomen, or legs from electric arc blasts and flashes, and
another sizeable group of victims (3.2 percent) died or sustained
injuries after falling out of vehicle-mounted aerial lifts.\6\
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\6\ `` Analytical Support and Data Gathering for a Preliminary
Economic Analysis for Proposed Standards for Work on Electric Power
Generation, Transmission, and Distribution Lines and Equipment (29
CFR 1910.269 and 29 CFR 1926--Subpart V),'' 2005, CONSAD Research
Corp. (Ex. 0080).
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D. Significant Risk and Reduction in Risk
Section 3(8) of the Occupational Safety and Health Act of 1970 (OSH
Act or the Act) defines an ``occupational safety and health standard''
as ``a standard which requires conditions, or the adoption or use of
one or more practices, means, methods, operations, or processes,
reasonably necessary or appropriate to provide safe or healthful
employment and places of employment.'' 29 U.S.C. 652(8). This
definition has been interpreted to require OSHA to make a threshold
showing of ``significant risk'' before it can promulgate a safety or
health standard. See, for example, Industrial Union Dept., AFL-CIO v.
American Petroleum Institute (Benzene), 448 U.S. 607 (1980) (plurality
opinion); see also, for example, UAW v. OSHA (Lockout/Tagout II), 37
F.3d 665 (D.C. Cir. 1994). The Agency's obligation to show significant
risk is not, however, a ``mathematical straitjacket.'' Benzene, 448
U.S. at 655. In fact, the Agency has discretion to ``determine, in the
first instance, what it considers to be a `significant' risk[,]'' and
it ``is not required to support its finding that a significant risk
exists with anything approaching scientific certainty.'' Id. at 655-56;
see also, for example, Public Citizen Health Research Group v. Tyson
(Ethylene Oxide), 796 F.2d 1479, 1486 (D.C. Cir. 1986).
Although OSHA makes significant risk findings for both health and
safety standards, see Lockout/Tagout II, 37 F.3d 665, the methodology
used to evaluate risk in safety rulemakings is more straightforward.
Unlike the risks related to health hazards, which ``may not be evident
until a worker has been exposed for long periods of time to particular
substances,'' the risks associated with safety hazards such as burns
and falls, ``are generally immediate and obvious.'' Benzene, 448 U.S.
at 649, n.54. See also 59 FR 28594, 28599 (June 2, 1994) (proposed rule
for longshoring and marine terminals, explaining that health hazards
``are frequently undetectable because they are subtle or develop slowly
or after long latency periods,'' whereas safety hazards ``cause
immediately noticeable physical harm''). As OSHA explained in its
lockout-tagout rulemaking:
For health standards, such as benzene, risk estimates are
commonly based upon mathematical models (e.g., dose response curves)
and the benefits are quantified by estimating the number of future
fatalities that would be prevented under various exposure
reductions. [In contrast, f]or safety standards risk is based upon
the assumption that past accident patterns are representative of
future ones. OSHA estimates benefits [for safety standards] by
determining the percentage of accidents that will be prevented by
compliance with the standard. . . . [58 FR 16612, 16623, Mar. 30,
1993]
OSHA's Final Economic and Regulatory Flexibility Analysis presents
the Agency's assessment of the risks and benefits of this final rule.
(See Section VI, Final Economic Analysis and Regulatory Flexibility
Analysis, later in the preamble.) In these analyses, as previously
mentioned, OSHA estimates that there are 74 fatalities and 444 serious
injuries among employees covered by this final rule each year. The
Agency has determined that almost half of those injuries and fatalities
would have occurred even if employers were in full compliance with
existing standards. (See Section VI, Final Economic Analysis and
Regulatory Flexibility Analysis, later in the preamble, in
[[Page 20322]]
which OSHA estimates that 53 percent of injuries and fatalities could
have been prevented through full compliance with existing standards.)
The accident data reviewed during this rulemaking, as explained in
detail in the economic and regulatory analyses, reveals that the
injuries and fatalities suffered by workers in power generation,
transmission, and distribution result from electric shocks, burns from
electric arcs, and falls, as well as other types of harmful incidents,
including ones in which employees are struck by, struck against, or
caught between, objects. Based on the large number of injuries and
fatalities occurring in this industry each year, and the fact that
existing standards are inadequate to prevent almost half of those
incidents, OSHA has determined that employees working on electric power
generation, transmission, and distribution installations are currently
exposed to a significant risk of injury or death.\7\
---------------------------------------------------------------------------
\7\ In industries in which worker exposure is less frequent than
in other industries, the number of injuries or fatalities associated
with the hazards covered by the final rule will most likely be less
than that of industries that have a higher rate of exposure. But
even for industries with low, negligible, or even no reported
injuries or fatalities, the workers exposed to the hazards covered
by the final rule face a ``significant risk of material harm.'' As
such, there is a significant risk to any worker of any industry
exposed to the hazards covered by the final rule. See, for example,
Lockout/Tagout II, 37 F.3d at 670 (``even in industries with low or
negligible overall accident rates, the workers who engage in the
operations covered by the standard face a `significant risk of
material harm'''); Associated Builders and Contractors, Inc. v.
Brock, 862 F.2d 63, 67-68 (3d Cir. 1988) (where the Court ordered
OSHA to expand its rule to cover additional industries, there was no
need to make separate significant risk findings for those industries
because ``the significant risk requirement must of necessity be
satisfied by a general finding concerning all potentially covered
industries'').
---------------------------------------------------------------------------
The Agency estimates that the changes implemented in this final
rule will prevent 19.75 fatalities and 118.5 serious injuries each
year. (See Section VI, Final Economic Analysis and Regulatory
Flexibility Analysis, later in the preamble.) OSHA, therefore,
concludes that this final standard substantially reduces the
significant risk that currently exists at power generation,
transmission, and distribution worksites. As noted in Section VI, Final
Economic Analysis and Regulatory Flexibility Analysis, later in the
preamble, the various new provisions and amendments being adopted
target the hazards the Agency has identified as contributors to the
significant risk associated with electric power generation,
transmission, and distribution work. Therefore, each element of this
final rule is reasonably necessary and appropriate to achieve the
anticipated reduction in overall risk.
No rulemaking participants meaningfully disputed OSHA's conclusion
that the aforementioned estimates establish a significant risk for
power generation, transmission, and distribution work. EEI, however,
argued that OSHA has an obligation to make an independent significant
risk showing for each of the hazards addressed by this rulemaking (See,
for example, Exs. 0227, 0501; see also Ex. 0237 (comments of the
American Forest & Paper Association).) OSHA does not agree that it is
required to make multiple, hazard-specific significant risk findings.
As OSHA has explained in prior rulemakings, ``[v]ertical standards
[such as Sec. 1910.269 and subpart V of part 1926] apply specifically
to a given industry'' or type of work (59 FR 28596 (proposed rule for
longshoring and marine terminals)). They generally address multiple
hazards faced by employees performing the covered work. See, for
example, 66 FR 5196 (Jan. 18, 2001) (steel erection standards address,
among other hazards, risks from working under loads, dangers associated
with landing and placing decking, and falls to lower levels); 62 FR
40142 (July 25, 1997) (standards covering longshoring and marine
terminals address multiple hazards, including hazards associated with
manual cargo handling and exposure to hazardous atmospheres); 52 FR
49592 (Dec. 31, 1987) (standard covering grain-handling facilities
includes provisions related to fire and explosion hazards, as well as
other safety hazards, such as the danger associated with entering bins,
silos, and tanks). OSHA believes that vertical ``standards can
encourage voluntary compliance because they are directed to the
particular problems of [an] industry'' (59 FR 28596). The adoption of
vertical standards is recognized as a legitimate exercise of OSHA's
standard-setting authority under the OSH Act. See Forging Indus. Ass'n
v. Secretary of Labor (Noise), 773 F.2d 1436, 1455 (4th Cir. 1985)
(``[T]he Agency has determined that a particular industry should be
made the subject of a vertical standard. . . . That decision was not
arbitrary or capricious . . . . Nor does the use of a comprehensive
vertical standard amount to a prohibited special treatment'').
Although the Agency can identify the general types of hazards
addressed by its vertical standards, and has done so in this
rulemaking, there is no legal requirement for hazard-by-hazard
significant risk findings in vertical standards. First, the DC Circuit
Court of Appeals has already rejected the argument ``that Benzene
requires that the agency find that each and every aspect of its
standard eliminates a significant risk faced by employees.'' Ethylene
Oxide, 796 F.2d at 1502, n. 16. Once OSHA makes a general finding of
significant risk, the question becomes whether the requirements of the
standard are reasonably related to the standard's purpose. See, for
example, Noise, 773 F.2d at 1447. Second, when the Supreme Court first
construed the OSH Act as imposing a significant risk requirement, it
spoke in terms of the Agency making findings about unsafe workplaces,
not individual hazards. Benzene, 448 U.S. at 642 (``before promulgating
any standard, the Secretary must make a finding that the workplaces in
question are not safe [and] a workplace can hardly be considered
`unsafe' unless it threatens the workers with a significant risk of
harm''). See also, for example, id. (framing the ``significant risk''
requirement as obligating OSHA ``to make a threshold finding that a
place of employment is unsafe--in the sense that significant risks are
present and can be eliminated or lessened by a change in practices'');
Texas Indep. Ginners Ass'n v. Marshall, 630 F.2d 398, 400 (5th Cir.
1980) (``[t]he Supreme Court recently ruled that the Act requires OSHA
to provide substantial evidence that a significant risk of harm arises
from a workplace or employment''). Third, courts have held that the OSH
Act does not require the disaggregation of significant risk analyses
along other lines. See, for example, Lockout/Tagout II, 37 F.3d at 670
(upholding OSHA's decision not to conduct individual significant risk
analyses for various affected industries); American Dental Ass'n v.
Martin, 984 F.2d 823, 827 (7th Cir. 1993) (OSHA is not required to
evaluate risk ``workplace by workplace''); Associated Builders and
Contractors, 862 F.2d at 68 (``the significant risk requirement must of
necessity be satisfied by a general finding concerning all potentially
covered industries'').
Requiring OSHA to make multiple, hazard-specific significant risk
findings would place an unwarranted burden on OSHA rulemaking because
of difficulties in specifically defining each of the hazards addressed
by a vertical standard.\8\ Hazards can be defined
[[Page 20323]]
broadly, for example, falling from an elevation, or more narrowly, for
example, falling from an elevated aerial lift while performing tree-
trimming work. The outcome of the significant risk analysis called for
by EEI would be largely (and somewhat arbitrarily) dependent on where
along this vast spectrum OSHA defined the relevant dangers.
---------------------------------------------------------------------------
\8\ Indeed, disputes over how to define hazards are commonplace
in enforcement cases under the general duty clause of the OSH Act.
See, for example, Secretary of Labor v. Arcadian Corp., 20 BNA OSHC
2001 (OSHRC, Sept. 30, 2004); Secretary of Labor v. Inland Steel
Co., 12 BNA OSHC 1968 (OSHRC, July 30, 1986); Secretary of Labor v.
Pelron Corp., 12 BNA OSHC 1833 (OSHRC, June 2, 1986).
---------------------------------------------------------------------------
OSHA reviewed the authority EEI relied on in support of the
purported requirement for hazard-specific risk findings, but does not
find it persuasive. First, EEI argued that the Supreme Court, in its
Benzene decision, held that the Agency had to make separate significant
risk findings for the air-contaminant and dermal-contact provisions of
that standard (Ex. 0227). A close reading of the decision in that case
reveals no such holding. Instead, the dermal-contact provisions in that
case were remanded on the same basis that the air-contaminant
provisions were rejected--namely that the provisions were not supported
by any significant risk findings. See Benzene, 448 U.S. at 661-62.
While the Court did suggest that OSHA needed to find that a prohibition
on dermal contact was reasonably necessary and appropriate to address a
significant risk, that is, that preventing dermal contact would reduce
the overall risk associated with workplace exposure to benzene, it did
not address whether a single significant risk finding could ultimately
support both the dermal-contact and air-contaminant provisions in the
standard. Id.
Second, EEI relied on the Eleventh Circuit's decision in AFL-CIO v.
OSHA (PELs), 965 F.2d 962 (11th Cir. 1992), which vacated and remanded
OSHA's Air Contaminants Standard (Ex. 0227). That rule set permissible
exposure limits for more than 400 toxic substances. Although in that
case the court said that OSHA needed to explain its assessment of risk
for each regulated substance, that rulemaking is readily distinguished
from this final rule. In PELs, the various regulated substances were
``unrelated'' and had ``little [in] common.'' 965 F.2d at 972. Here, in
contrast, the various hazards addressed by this final rule are closely
related. They all arise at power generation, transmission, and
distribution worksites and jointly contribute to the large number of
injuries and fatalities suffered by covered workers. OSHA does not
believe that the PELs decision limits its discretion to adopt
provisions it deems reasonably necessary and appropriate to abate the
existing electrocution, burn, fall, and other hazards that, together,
result in covered employees being exposed to an overall workplace risk
that is significant.
Finally, EEI's reliance on the Agency's ergonomics rulemaking is
misplaced. EEI pointed out that OSHA's risk assessment in its
ergonomics rulemaking considered only accidents that resulted from
hazards covered by that standard (Ex. 0227). But this interpretation
offers no support for EEI's position, as the risk assessment in this
rulemaking similarly considered only injuries and fatalities that
occurred during the performance of work covered by this final rule (Ex.
0080). (See also Section VI, Final Economic Analysis and Regulatory
Flexibility Analysis, later in the preamble.)
Although OSHA does not agree that hazard-specific significant risk
findings are necessary, the Agency believes that the record supports
such findings for the critical hazards addressed in this rulemaking--
namely electrocutions and electric shocks, burns from arc flashes, and
falls. The Agency has found that a significant number of injuries and
fatalities occur every year as a result of employee exposure to each of
these hazards. (See Section VI, Final Economic Analysis and Regulatory
Flexibility Analysis, later in the preamble.) Moreover, as EEI points
out, ``most of the hazards'' addressed in this rulemaking ``are already
covered by the existing standards that OSHA [is] now . . . modify[ing]
and supplement[ing]'' (Ex. 0227). Furthermore, some of the hazards
addressed by this rulemaking are already the subject of generally
applicable hazard-specific horizontal standards. See, for example, 29
CFR part 1926, subpart K (electrical hazards) and subpart M (fall
hazards). All of these existing standards were supported by findings of
significant risk, and OSHA simply concludes that the additional
provisions of this final rule are reasonably necessary and appropriate
to reduce a substantial portion of the remaining significant risk at
power generation, transmission, and distribution worksites.
III. Development of the Final Rule
A. History of the OSHA Standards
OSHA first adopted standards for the construction of power
transmission and distribution lines and equipment in 1972 (subpart V of
29 CFR part 1926). OSHA defines the term ``construction work'' in 29
CFR 1910.12(b) as ``work for construction, alteration, and/or repair,
including painting and decorating.'' The term ``construction'' is
broadly defined in Sec. 1910.12(d) and existing Sec. 1926.950(a)(1)
to include the original installation of, as well as the alteration,
conversion, and improvement of electric power transmission and
distribution lines and equipment.
The general industry standard at 29 CFR 1910.269 applies to the
operation and maintenance of electric power generation, transmission,
and distribution installations. OSHA adopted Sec. 1910.269 on January
31, 1994. That standard is a companion standard to subpart V of the
construction standards and addresses work to which subpart V did not
apply. When promulgated, Sec. 1910.269 was also based on the latest
technology and national consensus standards.
OSHA revised its Electrical Protective Equipment Standard in Sec.
1910.137 at the same time Sec. 1910.269 was promulgated. The revision
of Sec. 1910.137 eliminated the incorporation by reference of national
consensus standards for rubber insulating equipment and replaced it
with performance-oriented rules for the design, manufacture, and safe
care and use of electrical protective equipment.
OSHA published a proposed rule (the subpart V proposal) on June 15,
2005 (70 FR 34822). That document proposed revising the construction
standard for electric power transmission and distribution work (29 CFR
part 1926, subpart V) and the general industry standards for electric
power generation, transmission, and distribution work (29 CFR
1910.269). That document also proposed a new construction standard for
electrical protective equipment (29 CFR 1926.97) and revisions to the
general industry standards for foot protection (29 CFR 1910.136) and
electrical protective equipment (29 CFR 1910.137). Public comments were
originally due by October 13, 2005, but in response to requests from
interested parties, including EEI, OSHA extended the comment period 90
days to January 11, 2006 (70 FR 59290, Oct. 12, 2005). OSHA held an
informal public hearing beginning on March 6, 2006, and ending on March
14, 2006. After the hearing, interested parties had until May 15, 2006,
to submit additional information and until July 14, 2006, to file
posthearing briefs (Tr. 1415).
On October 22, 2008, OSHA reopened the record for 30 days to gather
information from the public on specific questions related to minimum
approach distances (73 FR 62942). EEI requested a public hearing and an
additional 60 days to submit comments on the issues raised in the
reopening notice (Ex. 0530). On September 14, 2009, OSHA
[[Page 20324]]
opened the record for an additional 30 days to receive more comments on
minimum approach distances and announced a public hearing to be held on
October 28, 2009, addressing the limited issues raised in the two
reopening notices (74 FR 46958). After the hearing, interested parties
had until December 14, 2009, to submit additional information and until
February 10, 2010, to file posthearing briefs (Tr2. 199).
The record for this rulemaking consists of all prehearing comments,
the transcripts of the two public hearings, all exhibits submitted
prior to and during the two hearings, and posthearing submissions and
briefs. Administrative Law Judge Stephen Purcell issued an order
closing the record and certified the record to the Assistant Secretary
of Labor for Occupational Safety and Health. The Agency carefully
considered the entire record in preparing this final standard.
B. Relevant Consensus Standards
The National Electrical Safety Code (American National Standards
Institute (ANSI) Standard ANSI/IEEE C2, also known as the NESC)
contains provisions specifically addressing electric power generation,
transmission, and distribution work. ANSI/IEEE C2 does not, however,
address the full range of hazards covered by this final rule. It is
primarily directed to the prevention of electric shock, although it
does contain a few requirements for the prevention of falls and burns
from electric arcs.
The American Society for Testing and Materials (ASTM) has adopted
standards related to electric power generation, transmission, and
distribution work. ASTM Committee F18 on Electrical Protective
Equipment for Workers has developed standards on rubber insulating
equipment, climbing equipment, protective grounding equipment,
fiberglass rod and tube used in live-line tools, and clothing for
workers exposed to electric arcs.
The National Fire Protection Association (NFPA) has adopted a
standard on electrical safety for employees, NFPA 70E, Standard for
Electrical Safety in the Workplace. Although it does not apply to
electric power generation, transmission, or distribution installations,
the NFPA standard contains provisions addressing work near such
installations performed by unqualified employees, that is, employees
who have not been trained to work on or with electric power generation,
transmission, or distribution installations. It also contains methods
for estimating heat energy levels from electric arcs and describes ways
to protect employees from arc-flash hazards.
The Institute of Electrical and Electronic Engineers (IEEE) writes
standards for electric power generation, transmission, and distribution
installations and for work on those installations. Many of these
standards have been adopted by ANSI. Among these IEEE standards are:
IEEE Std 516, IEEE Guide for Maintenance Methods on Energized Power-
Lines, and IEEE Std 1048, IEEE Guide for Protective Grounding of Power
Lines.
OSHA recognizes the important role consensus standards can play in
ensuring worker safety. A comprehensive list of consensus standards
relating to electric power generation, transmission, and distribution
work can be found in existing Appendix E to Sec. 1910.269. OSHA
proposed to add the same list as Appendix E to subpart V. OSHA
considered the latest editions of all the standards listed in Appendix
E in the development of this final rule. Any substantial deviations
from these consensus standards are explained in Section V, Summary and
Explanation of the Final Rule, later in this preamble.
C. Advisory Committee on Construction Safety and Health
Under 29 CFR parts 1911 and 1912, OSHA must consult with the
Advisory Committee on Construction Safety and Health (ACCSH or the
Committee), established pursuant to Section 107 of the Contract Work
Hours and Safety Standards Act (40 U.S.C. 3701 et seq.), in setting
standards for construction work. Specifically, Sec. 1911.10(a)
requires the Assistant Secretary to provide ACCSH with a draft proposed
rule (along with pertinent factual information) and give the Committee
an opportunity to submit recommendations. See also Sec. 1912.3(a)
(``[W]henever occupational safety or health standards for construction
activities are proposed, the Assistant Secretary [for Occupational
Safety and Health] shall consult the Advisory Committee.'').
OSHA has a long history of consulting with ACCSH on this
rulemaking. On May 25, 1995, OSHA took a draft of the proposed
construction standards to ACCSH, providing the Committee with a draft
of the proposal and with a statement on the need to update the
standards. The Committee formed a workgroup to review the materials,
and the workgroup provided comments to OSHA. The Agency gave a status
report on the proposal to the Committee on August 8, 1995, and an
updated draft of the proposal to ACCSH on December 10, 1999. On
February 13, 2003, OSHA gave ACCSH another status report and summarized
the major revisions it had made to the proposal. On May 22, 2003, OSHA
provided the Committee with the same copy of the draft proposal that
had been provided to the small entity representatives who were
participating in the Small Business Regulatory Enforcement and Fairness
Act (SBREFA) proceedings, which were being conducted at that time. OSHA
also explained the major issues being raised by the small entity
representatives on the draft proposal.
On May 18, 2004, ACCSH gave the Agency formal recommendations on
the proposal. OSHA sought ACCSH's recommendations on the proposal
generally, as well as on issues specifically related to host employer-
contractor communications and flame-resistant clothing. ACCSH voted
unanimously that: (1) The construction standards for electric power
transmission and distribution work should be the same as the general
industry standards for the same type of work; (2) it was necessary to
require some safety-related communications between host employers and
contractors; and (3) employees need to be protected from hazards posed
by electric arcs through the use of flame-retardant clothing. ACCSH
recommended, by unanimous vote, that OSHA issue its proposal,
consistent with these specific recommendations.\9\
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\9\ ACCSH transcript for May 18, 2004, pages 224-239. This
document can be viewed in the OSHA Docket Office or online at http://www.osha.gov.
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EEI suggested that OSHA had to seek additional input from ACCSH if
it decided to rely on the recent work of the IEEE technical committee
responsible for revising IEEE Std 516, which has not been presented to
ACCSH, in developing the final rule's minimum approach-distance
provisions (Tr2. 18-19). EEI is not correct. In making its assertion,
EEI relies on Nat'l Constructors Ass'n. v. Marshall (Nat'l
Constructors), 581 F.2d 960 (D.C. Cir. 1978). EEI's reliance on this
case is misplaced. Although the court stated that the OSH Act and
OSHA's procedural regulations (29 U.S.C. 655(b)(1); 29 CFR 1911.10(a))
place ``a `stricter' requirement on when, and how often, the agency
must utilize the advisory committee procedure than does the
[Administrative Procedure Act (APA)] with respect to public comment
during informal rulemaking,'' id. at 970, that statement in the
decision is nonprecedential dicta. The court did not ``decide how much
stricter the requirement is'' because, the court
[[Page 20325]]
concluded, the rule at issue did not meet ``even the APA's . . .
standard.'' Id. at 971 n.27. As such, the case stands, at most, for the
proposition that OSHA must return to ACCSH where the final rule at
issue does not meet the APA's ``logical outgrowth'' test.
OSHA's consultation with ACCSH in this rulemaking was consistent
with the Nat'l Constructors decision. The Nat'l Constructors court
stated that OSHA had to engage in further consultation with ACCSH
regarding its ground-fault circuit protection standard where the final
rule recognized ``assured equipment grounding conductor programs'' as a
method of compliance, but ACCSH had never had the opportunity to
comment on that particular form of employee protection. The DC Circuit
concluded that the compliance program in question was neither presented
to ACCSH, nor ``gr[e]w logically out of anything that was presented to,
or heard from, the Committee.'' Id. at 970--971. In this Subpart V
rulemaking, in contrast, the basic requirement to adhere to minimum
approach distances was presented to ACCSH. (See, for example, ACCSH
Docket ACCSH 1995-2.) The Agency is simply refining the method used to
establish the minimum approach distances \10\ in light of technical
progress that has been made since the proposal was reviewed by ACCSH.
(For a complete discussion of the minimum approach-distance
requirements and OSHA's rationale for adopting them, see the summary
and explanation for final Sec. 1926.960(c)(1), in Section V, Summary
and Explanation of the Final Rule, later in this preamble.)
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\10\ The basic equation for computing minimum approach distances
in the final rule is the same as the one used in existing Sec.
1910.269 and in the draft proposal submitted to ACCSH.
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In any event, ACCSH had an opportunity to comment on whether OSHA
should rely on the work of the IEEE committee generally. ACCSH knew
that OSHA might base the minimum approach distances for subpart V on
existing Sec. 1910.269. (See, for example, Exhibit 12 in Docket ACCSH
1995-2 and Exhibit 101-X in Docket ACCSH 1995-3.) In fact, ACCSH
ultimately concluded in its recommendation that the construction
standards for electric power transmission and distribution work should
be the same as the general industry standards for the same type of
work. As existing Sec. 1910.269's minimum approach-distance
requirements were derived from IEEE Std 516 (59 FR 4320, 4382-4384
(Jan. 31, 1994)), ACCSH was on notice that the work of the IEEE 516
committee might be used by the Agency in formulating the minimum
approach-distance requirements for this final rule.
That ACCSH did not specifically pass on the question of whether
OSHA should derive its minimum approach-distance requirements from work
done in the formulation of an IEEE standard that was not yet issued at
the time of the ACCSH consultation is of no consequence. The OSH Act
and OSHA's procedural regulation (29 U.S.C. 655(b)(1); 29 CFR
1911.10(a)) ``make clear that the Assistant Secretary need only supply
whatever information he has available to him at the time he submits his
proposal to the Committee.'' Nat'l Constructors, 581 F.2d at 968. As
the Nat'l Constructors Court recognized, ``by designing the Advisory
Committee option as a procedural step that must precede public notice,
comment, and the informal hearing, [Congress] assumed that the
Committee would not be provided with all information that the Labor
Department eventually developed on the subject.'' Id. at 968 n.16.
Thus, OSHA's action in the final rule is consistent with Nat'l
Constructors.
IV. Legal Authority
The purpose of the OSH Act, 29 U.S.C. 651 et seq., is ``to assure
so far as possible every working man and woman in the Nation safe and
healthful working conditions and to preserve our human resources.'' 29
U.S.C. 651(b). To achieve this goal, Congress authorized the Secretary
of Labor to promulgate and enforce occupational safety and health
standards. 29 U.S.C. 654, 655(b), 658.
A safety or health standard ``requires conditions, or the adoption
or use of one or more practices, means, methods, operations, or
processes, reasonably necessary or appropriate to provide safe or
healthful employment and places of employment.'' 29 U.S.C. 652(8). A
safety standard is reasonably necessary or appropriate within the
meaning of 29 U.S.C. 652(8) if:
It substantially reduces a significant risk of material
harm in the workplace;
It is technologically and economically feasible;
It uses the most cost-effective protective measures;
It is consistent with, or is a justified departure from,
prior Agency action;
It is supported by substantial evidence; and
It is better able to effectuate the purposes of the OSH
Act than any relevant national consensus standard.
Lockout/Tagout II, 37 F.3d at 668. In addition, safety standards must
be highly protective. See, for example, id. at 669.
A standard is technologically feasible if the protective measures
it requires already exist, can be brought into existence with available
technology, or can be created with technology that can reasonably be
expected to be developed. See, for example, American Iron and Steel
Inst. v. OSHA (Lead II), 939 F.2d 975, 980 (D.C. Cir. 1991) (per
curiam). A standard is economically feasible when industry can absorb
or pass on the costs of compliance without threatening industry's long-
term profitability or competitive structure. See, for example, American
Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 530 n. 55 (1981); Lead
II, 939 F.2d at 980. A standard is cost effective if the protective
measures it requires are the least costly of the available alternatives
that achieve the same level of protection. See, for example, Lockout/
Tagout II, 37 F.3d at 668.
Section 6(b)(7) of the OSH Act authorizes OSHA to include among a
standard's requirements labeling, monitoring, medical testing, and
other information-gathering and information-transmittal provisions. 29
U.S.C. 655(b)(7). Finally, the OSH Act requires that when promulgating
a rule that differs substantially from a national consensus standard,
OSHA must explain why the promulgated rule is a better method for
effectuating the purposes of the Act. 29 U.S.C. 655(b)(8). Deviations
from relevant consensus standards are explained elsewhere in this
preamble.
V. Summary and Explanation of the Final Rule
OSHA is adopting a new construction standard on electrical
protective equipment, 29 CFR 1926.97, and is revising the standard on
the construction of electric power transmission and distribution lines
and equipment, 29 CFR part 1926, subpart V. The Agency is also revising
the general industry counterparts to these two construction standards,
29 CFR 1910.137 and 1910.269, respectively. Finally, OSHA is revising
its general industry standard on foot protection, 29 CFR 1910.136, to
require employers to ensure that each affected employee uses protective
footwear when the use of protective footwear will protect the affected
employee from an electrical hazard, such as a static-discharge or
electric-shock hazard, that remains after the employer takes other
necessary protective measures.
This section discusses the important elements of the final rule,
explains the individual requirements, and explains
[[Page 20326]]
any differences between the final rule and existing standards. This
section also discusses issues that were raised at the two public
hearings, significant comments received as part of the rulemaking
record, and substantive changes from the language of the proposed rule.
Unless otherwise noted, paragraph references in the summary and
explanation of the final rule fall under the section given in the
heading for the discussion. For example, except as otherwise noted,
paragraph references in V.A, Section 1926.97, Electrical Protective
Equipment, are to paragraphs in final Sec. 1926.97. Except as noted,
the Agency has carried proposed provisions into the final rule without
substantive change.
The final rule contains several differences from the proposal and
existing Sec. Sec. 1910.137 and 1910.269 that are purely editorial and
nonsubstantive. For example, the Agency amended the language of some
provisions to shift from passive to active voice, thereby making the
standard easier to read. OSHA does not discuss explicitly in the
preamble all of these differences. The purpose of these differences,
unless otherwise noted, is to clarify the final standard.
A. Section 1926.97, Electrical Protective Equipment
Workers exposed to electrical hazards face a risk of death or
serious injury from electric shock. According to BLS, there were 192
and 170 fatalities involving contact with electric current in 2008 and
2009, respectively (http://www.bls.gov/iif/oshwc/cfoi/cftb0240.pdf and
http://www.bls.gov/iif/oshwc/cfoi/cftb0249.pdf). About half of these
fatalities (89 in both years) occurred in construction (id.).\11\
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\11\ Similar data are available at http://www.bls.gov/iif/oshcfoi1.htm#2009 for each year back to 2003.
---------------------------------------------------------------------------
The use of properly designed, manufactured, and cared-for
electrical protective equipment helps protect employees from this risk.
Therefore, OSHA is issuing final Sec. 1926.97, Electrical protective
equipment, which addresses the design, manufacture, and proper care of
electrical protective equipment. In addition, OSHA is revising existing
Sec. 1910.137, which also contains provisions addressing the design,
manufacture, and proper care of electrical protective equipment. For
reasons described at length in this section of the preamble, OSHA
concludes that the final rule will be a more effective means of
protecting employees from the risk of electric shock than existing OSHA
standards.
The existing requirements for electrical protective equipment in
construction work are in Sec. 1926.951(a)(1), which only applies to
the construction of electric power transmission and distribution lines
and equipment. However, employers throughout the construction industry
use electrical protective equipment, and OSHA believes that provisions
for electrical protective equipment, as specified by final Sec.
1926.97, should apply, not only to electric power transmission and
distribution work, but to all construction work. Therefore, OSHA is
issuing new Sec. 1926.97, Electrical protective equipment, which
applies to all construction work.
Existing Sec. 1926.951(a)(1) incorporates by reference the
following six American National Standards Institute (ANSI) standards:
------------------------------------------------------------------------
Item ANSI Standard
------------------------------------------------------------------------
Rubber insulating gloves.............. J6.6-1971
Rubber matting for use around electric J6.7-1935 (R1971)
apparatus.
Rubber insulating blankets............ J6.4-1971
Rubber insulating hoods............... J6.2-1950 (R1971)
Rubber insulating line hose........... J6.1-1950 (R1971)
Rubber insulating sleeves............. J6.5-1971
------------------------------------------------------------------------
These standards contain detailed specifications for manufacturing,
testing, and designing electrical protective equipment. However, these
standards have undergone several revisions since the 1971 publication
date of existing subpart V and are now seriously out of date. Following
is a complete list of the corresponding current national consensus
standards:
ASTM D120-09, Standard Specification for Rubber Insulating Gloves.
ASTM D178-01 (Reapproved 2010), Standard Specification for Rubber
Insulating Matting.
ASTM D1048-12, Standard Specification for Rubber Insulating
Blankets.
ASTM D1049-98 (Reapproved 2010), Standard Specification for Rubber
Insulating Covers.
ASTM D1050-05 (Reapproved 2011), Standard Specification for Rubber
Insulating Line Hose.
ASTM D1051-08, Standard Specification for Rubber Insulating
Sleeves.
Additionally, there are now standards on the in-service care of
insulating line hose and covers (ASTM F478-09), insulating blankets
(ASTM F479-06 (2011)), and insulating gloves and sleeves (ASTM F496-
08), which OSHA did not incorporate or reference in existing Sec.
1926.951(a)(1).\12\
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\12\ The relevant ASTM standards are in the record as Exs. 0048,
0049, 0050, 0051, 0066, 0067, 0068, 0069, 0070. In several cases,
the version of the consensus standard in the record is older than
the version listed in the preamble. However, OSHA based final
Sec. Sec. 1926.97 and 1910.137 only on the ASTM documents and other
data in the record. The preamble lists editions of the consensus
standards not in the record because OSHA evaluated them for
consistency with the final rule. OSHA determined that these later
ASTM standards conform to the requirements of final Sec. Sec.
1926.97 and 1910.137. See the discussion of the notes following
paragraphs (a)(3)(ii)(B) and (c)(2)(ix) for the significance of this
determination.
---------------------------------------------------------------------------
OSHA derived proposed new Sec. 1926.97 from these national
consensus standards, but drafted it in performance terms. OSHA is
carrying this approach forward into the final rule. The final rule
relies on provisions from the consensus standards that are performance
based and necessary for employee safety, but the final rule does not
contain many of the detailed specifications from those standards. Thus,
the final rule will provide greater flexibility for compliance.
BGE commented that OSHA's performance-based approach leaves the
standards ``vague'' and creates ``opportunities for unsafe practices''
(Ex. 0126).
OSHA disagrees with this comment for the following reasons.
The Agency recognizes the importance of the consensus standards in
defining basic requirements for the safe design and manufacture of
electrical protective equipment for employees. To this end, OSHA will
allow employers to comply with the final rule by following specific
provisions in the consensus standards. OSHA believes that the option of
following these specific provisions addresses the commenter's concern
about vagueness.
However, OSHA determined that it would be inappropriate to adopt
the consensus standards in toto in this rulemaking. First, each of the
currently referenced standards has undergone several revisions since
OSHA adopted the standards in existing Sec. 1926.951(a)(1). Because of
the continual process by which the consensus standards development
organizations periodically revise their consensus standards, any
specific editions that OSHA might adopt likely would be outdated within
a few years. Additionally, since OSHA's rulemaking process is lengthy,
it would not be practical for OSHA to revise its standards as often as
necessary to keep pace with the changes in the consensus
[[Page 20327]]
standards. Final Sec. 1926.97 is flexible enough to accommodate
changes in technology, obviating the need for constant revision.
Wherever possible, OSHA wrote the final rule in performance terms to
allow alternative methods of compliance that provide comparable safety
to employees.
Another difficulty with incorporating the consensus standards by
reference is that they contain details that go beyond the scope of the
OSHA standard and are not directly related to employee safety. In final
Sec. 1926.97, OSHA relied only on consensus standard provisions that
are relevant to employee safety in the workplace. Furthermore, to make
the requirements easier for employers and employees to use and
understand, OSHA adopted language in the final rule that is simpler
than that in the consensus standards. Because all relevant requirements
are in the text of the regulations, employers will not need to refer to
the consensus standards to determine their obligations under final
Sec. 1926.97. Although OSHA is no longer incorporating the consensus
standards by reference, notes throughout the rule clarify that OSHA
will deem compliance with the consensus standards listed in the notes
to be compliance with the performance requirements of final Sec.
1926.97.
OSHA notes that it recently decided not to adopt a proposed
performance-based approach when it revised the design requirements
contained in several personal protective equipment standards (74 FR
46350, Sept. 9, 2009). In issuing that final rule, OSHA reasoned that
``widespread opposition'' to, and misunderstanding of, the proposal
indicated ``possible misapplication . . . if adopted'' (74 FR 46352).
This rationale does not apply to this rulemaking. First, there was
no widespread opposition to the proposed performance-based approach in
this rulemaking. A number of commenters did request that OSHA deem
employers that are in compliance with all future revisions of the
listed consensus standards as being in compliance with the final rule
(see, for example, Exs. 0156, 0180, 0183, 0202, 0206, 0229, 0231,
0239). The Agency believes that the performance-based approach it
adopts in final Sec. 1926.97 will provide these commenters with the
flexibility they requested by permitting employers to follow future
versions of consensus standards so long as those future versions meet
the final rule's performance-based criteria. Second, OSHA adopted a
performance-based approach when it previously revised existing Sec.
1910.137 in 1994 (59 FR 4323-4325). Several participants in the 1994
rulemaking supported a performance-based approach (59 FR 4324). Third,
OSHA believes that harmonizing Sec. 1926.97 and Sec. 1910.137 will
reduce misapplication by the regulated community and, thereby, reduce
the risk of electric shock. Promulgating inconsistent standards would
increase misapplication by the regulated community and, consequently,
increase the risk of electric shock. Finally, OSHA has had no
difficulty enforcing Sec. 1910.137 since issuing it in 1994.
Regarding the commenters' requests that OSHA deem employers that
are in compliance with all future revisions of the listed consensus
standards as being in compliance with the final rule, OSHA has no basis
on which to find that future revisions of the consensus standards will
provide suitable guidance for compliance with the performance criteria
of the final rule. Revised consensus standards may or may not meet the
final rule's performance criteria. If a revised consensus standard does
not satisfy this final rule's performance criteria, however, the Agency
may consider compliance with that consensus standard to be a de minimis
condition if the consensus standard clearly provides protection equal
to, or greater than, the protection provided by Sec. 1926.97.\13\
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\13\ De minimis conditions are conditions in which an employer
implemented a measure different from one specified in a standard,
but that has no direct or immediate relationship to safety or
health. The Agency does not issue citations or penalties for de
minimis conditions, nor is the employer required to bring the
workplace into compliance, that is, there are no abatement
requirements. Pursuant to OSHA's de minimis policy, which is set
forth in OSHA Instruction CPL 02-00-148 (``Field Operations
Manual''), a de minimis condition exists when an employer complies
with a consensus standard rather than with the standard in effect at
the time of the inspection and the employer's action clearly
provides equivalent or more effective employee protection.
---------------------------------------------------------------------------
An employer seeking to rely on an updated consensus standard may
evaluate for itself whether the consensus standard meets the
performance criteria contained in final Sec. 1926.97. An employer that
is unsure about whether a revised consensus standard meets the OSHA
standard's performance criteria may seek guidance from OSHA. If a
revised consensus standard does not appear to meet the OSHA standard's
performance criteria, but the employer nonetheless wants to follow the
revised consensus standard, the employer should seek guidance from OSHA
as to whether the Agency would consider an employer's following the
revised consensus standard to be a de minimis condition.\14\
---------------------------------------------------------------------------
\14\ Note that this approach applies to the use of any consensus
standard referenced in the final rule. Moreover, the same principles
described with respect to subsequent versions of the consensus
standards also apply to earlier versions of the consensus standards.
---------------------------------------------------------------------------
Some rulemaking participants asked OSHA to provide the applicable
consensus standards to employers at no cost. (See, for example, Exs.
0156, 0161, 0183, 0202, 0206, 0229, 0231, 0233; Tr. 1287-1288.) For
instance, Mr. Terry Williams with the Electric Cooperatives of South
Carolina stated: ``If OSHA is to rely on procedures that it does not
describe in full, . . . the agency should provide a cost-free way for
employers to review these procedures to make sure they are following
them'' (Ex. 0202). Mr. Don Adkins with Davis H. Elliot Construction Co.
stated that the ``cost of securing and reviewing these voluntary
standards place[s] a financial burden on small employers'' (Ex. 0156).
OSHA is rejecting these requests. The Agency stated the rule in
performance-based terms, which allows employers flexibility in
complying with the rules. The Agency understands that employers may
want additional guidance in terms of precise procedures or detailed
specifications to follow. Final Sec. 1926.97 references relevant
consensus standards to provide such additional guidance, but those
standards are not mandatory.
In any event, even when OSHA incorporates consensus standards by
reference, the Agency does not provide those consensus standards to
employers at no cost. Many consensus standards are copyrighted
documents; and, in those cases, the copyright holder has certain legal
rights regarding the public distribution of those documents. Note that
some consensus standards development organizations, for example, NFPA,
do provide free, view-only access to their standards (http://www.nfpa.org/itemDetail.asp?categoryID=279&itemID=18123&URL=Codes%20&%20Standards/Code%20development%20process/Online%20access).\15\ OSHA also will
continue to explore other ways of informing the regulated community
[[Page 20328]]
about applicable compliance obligations specified by the final rule.
---------------------------------------------------------------------------
\15\ For instance, NFPA 70E, Standard for Electrical Safety in
the Workplace, one of the documents listed in Appendix G to Subpart
V, described later in this section of the preamble, is available at
http://www.nfpa.org/aboutthecodes/AboutTheCodes.asp?DocNum=70E&cookie_test=1. Select either the 2009
or 2012 edition from the drop-down box labeled ``Edition to
display'' and click the link labeled ``View [selected] edition
online.'' Note that registration with NFPA is required to view the
standard.
---------------------------------------------------------------------------
Moreover, employers can often rely on the assurances of third
parties that equipment or test methods meet the listed consensus
standards. First, OSHA expects that employers will typically get the
assurance of manufacturers that electrical protective equipment is
capable of withstanding the appropriate electrical proof tests required
by final paragraphs (a) and (b). In this regard, an employer can simply
look for equipment labeled as meeting the listed consensus standards.
Manufacturers attest, through such a label, typically required by the
relevant consensus standard, that their equipment passed the requisite
tests.
Second, it is OSHA's understanding that many employers,
particularly small employers, do not test their own equipment to
determine whether employees can use the equipment, as required by final
paragraph (c). Instead, these employers send the equipment to an
electrical laboratory for testing (see, for example, the testimony of
Mr. Frank Brockman of Farmers Rural Electric Cooperative Corporation
about the use of testing laboratories, Tr. 1301-1302). It is OSHA's
understanding that, as a matter of practice, such laboratories follow
the test methods in the applicable consensus standards for testing a
wide range of products (see, for example, Ex. 0211).\16\ To determine
whether employees can use the equipment in accordance with final
paragraph (c), employers can rely on the assurance of these testing
laboratories that they followed the listed consensus standards, as well
as the requirements of OSHA's standard.
---------------------------------------------------------------------------
\16\ When a question arises as to the validity of a test method
a laboratory is using, OSHA will investigate the validity of the
method.
---------------------------------------------------------------------------
OSHA expects that, when consensus standards development
organizations revise their consensus standards, manufacturers' labels
will certify that the equipment meets the latest consensus standards,
and that testing laboratories will use the test methods in the latest
consensus standards, rather than the consensus standards listed in the
notes. OSHA is sympathetic to concerns that employers, especially small
businesses, do not have the resources to purchase and check whether
revised consensus standards meet the final rule's performance criteria.
As discussed previously, an employer that does not have the resources
to purchase and review an updated consensus standard (indeed, any
employer) may request guidance from OSHA on whether compliance with an
updated consensus standard would conform to this final rule or bring
the employer within OSHA's de minimis policy.
In the final rule, OSHA reworded the headings for paragraphs (a),
(b), and (c) to more accurately reflect the content of the respective
paragraphs. Paragraph (a). Paragraph (a) of Sec. 1926.97 addresses the
design and manufacture of the following types of rubber insulating
equipment: Blankets, matting, covers, line hose, gloves, and
sleeves.\17\ (Paragraph (b) of Sec. 1926.97 contains general
requirements for other types of insulating equipment (see the
discussion of this paragraph later in this section of the preamble).)
Paragraphs (a) and (c) of proposed Sec. 1926.97 were based on existing
Sec. 1910.137(a) and (b); however, the proposal added Class 00
equipment to the classes addressed by the existing provisions to
reflect the coverage of this new class of equipment in the consensus
standards (Exs. 0048, 0051). This class of electrical protective
equipment is used with voltages of 500 volts or less. OSHA received no
comments on the proposed addition of Class 00 electrical protective
equipment.
---------------------------------------------------------------------------
\17\ The language in proposed paragraph (a) has been editorially
revised in the final rule to make it clearer that the paragraph
applies to rubber insulating equipment only.
---------------------------------------------------------------------------
Paragraph (a)(1)(i), which is being adopted without change from the
proposal, requires blankets, gloves, and sleeves to be manufactured
without seams. This method of making the protective equipment minimizes
the chance that the material will split. Because they are used when
workers handle energized lines, gloves and sleeves are the only defense
an employee has against electric shock. Additionally, the stresses
placed on blankets, gloves, and sleeves by the flexing of the rubber
during normal use could cause a seam to separate from tensile or shear
stress.
The prohibition on seams does not apply to the other three types of
electrical protective equipment covered by paragraph (a) (covers, line
hose, and matting). These types of equipment generally provide a more
indirect form of protection because they insulate the live parts from
accidental, rather than intended, contact. Moreover, they are not
usually subject to similar amounts or types of flexing and, thus, are
not subject to the same stress.\18\
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\18\ Flexing can cause different types of stress on rubber,
including tensile, compression, and shear stress. Rubber insulating
line hose and covers are subject to the greatest amount of flexing
while employees are installing them on an energized part. However,
employees install this equipment either with live-line tools or
while wearing rubber insulating gloves and sleeves. Thus, when seam
separation is likely, the employee is protected by other means.
Rubber insulating matting is generally laid on the floor and is
not subject to the type of flexing that is likely to cause
separation.
---------------------------------------------------------------------------
Paragraph (a)(1)(ii), which is being adopted with one modification
from the proposal, requires electrical protective equipment to be
marked to indicate its class and type. The class marking indicates the
voltage with which the equipment can be used; \19\ the type marking
indicates whether the equipment is ozone resistant. These markings
enable employees to know the uses and voltages for which the equipment
is suited. This provision also permits equipment to contain other
relevant markings, for example, the manufacturer's name, the size of
the equipment, or a notation that the equipment is manufactured in
accordance with the relevant consensus standards.
---------------------------------------------------------------------------
\19\ The maximum use voltages for individual classes of
equipment are provided in Table E-4, discussed under the summary and
explanation for paragraph (c)(2)(i), infra.
---------------------------------------------------------------------------
Proposed paragraphs (a)(1)(ii)(G) and (a)(1)(ii)(H) would have
required rubber insulating equipment ``other than matting'' to be
marked as Type I or Type II to indicate whether or not it was ozone-
resistant. Mr. James Thomas, President of ASTM International, submitted
comments recommending that the quoted language be deleted from these
paragraphs because the ``type classification denotes the manufacturing
material being either Nonresistant to Ozone (Type I) or Resistant to
Ozone (Type II) and applies to all [rubber insulating equipment],
including [m]atting'' (Ex. 0148).
OSHA agrees that the ASTM standards require matting to be marked
with the type to indicate whether or not it is ozone-resistant, and the
Agency has adopted the commenter's recommendation in the final rule.
Mr. Leo Muckerheide of Safety Consulting Services recommended that
OSHA require marking the maximum use voltage on electrical protective
equipment, stating:
Many electrical workers work with multiple voltages and are
infrequent users of electrical protective equipment. Therefore,
expecting them to remember which class to use with which voltage is
a potentially hazardous problem. This problem can be easily
eliminated by having the maximum use voltage marked on the
electrical protective equipment. [Ex. 0180]
OSHA rejects this recommendation. First, workers using electrical
protective equipment receive training that ensures that they know which
class of equipment to use on which voltage. The
[[Page 20329]]
record demonstrates that most of the workers covered by Sec. 1910.269
and subpart V are highly trained (see, for example, Tr. 1228) and use
electrical protective equipment to work on energized lines on a
regular, often daily, basis (see, for example, Tr. 394, 889, 1218-
1219). Furthermore, several OSHA standards require training for
employees working on or near exposed energized parts, when electrical
protective equipment would also be required. For instance, final
Sec. Sec. 1910.269(a)(2)(ii)(D) and 1926.950(b)(2)(iv) require
training in the use of electrical protective equipment for qualified
employees performing electric power generation, transmission, and
distribution work. Paragraph (c)(2) of Sec. 1910.333 contains a
similar requirement for workers performing other types of general
industry electrical work. Paragraph (b)(2) of Sec. 1926.21 contains
training requirements for workers performing construction work.
Although this requirement is more general than the training requirement
in this final standard, Sec. 1926.21 requires training in OSHA
standards applicable to the employee's work environment.
Second, electrical protective equipment meeting the applicable
consensus standards is manufactured with the Class ratings included,
but generally without labels for maximum use voltages. (See, for
example, Exs. 0048, 0049, 0050, 0066, 0067, 0068.) Requiring electrical
protective equipment to be marked with its maximum use voltage would
likely force employers to mark the equipment themselves. OSHA believes
that the permanent class-rating marking placed on electrical protective
equipment by the manufacturer provides adequate information and is less
likely to wear off over the useful life of the equipment than any
marking put in place by an employer. Thus, the Agency concludes that a
requirement for marking the maximum use voltage on electrical
protective equipment is unnecessary.
Mr. Frank Owen Brockman, representing Farmers Rural Electric
Cooperative Corporation, recommended that OSHA also require that the
markings include the company testing the equipment, the test date, and
owners of the equipment (Ex. 0173). He did not explain how including
this additional information in the markings would better protect
employees. Moreover, although requiring the employer to note the date
equipment is tested does enhance worker protection, final paragraph
(c)(2)(xii) of Sec. 1926.97 addresses this matter by requiring the
employer to certify that equipment has successfully passed the periodic
testing required by the final rule and by requiring this certification
to identify the equipment that passed the test and the date it was
tested. OSHA agrees with Mr. Brockman that keeping workers aware of the
date of last testing would enhance worker protection. Therefore, OSHA
revised the language in final paragraph (c)(2)(xii) to also require
that the certification required by the rule be made available to
employees or their authorized representatives.
It should be noted that, although not required, the markings
suggested by Mr. Muckerheide and Mr. Brockman are permitted under
paragraph (a)(1)(ii)(I).
Paragraph (a)(1)(iii) requires all markings to be nonconductive and
to be applied so as not to impair the insulating properties of the
equipment. OSHA did not receive any comments on this provision in the
proposal and has carried it forward without change into the final rule.
This requirement ensures that no marking interferes with the protection
to be provided by the equipment.
Paragraph (a)(1)(iv), which is being adopted without change from
the proposal, requires markings on gloves to be confined to the cuff
area.\20\ As OSHA explained in the preamble to the proposed rule,
markings in other areas could possibly wear off (70 FR 34828).
Moreover, having the markings in one place will allow the employee to
determine the class and type of glove quickly. Finally, as discussed
later in this section of the preamble, final paragraph (c)(2)(vii)
requires that rubber gloves normally be worn under protector gloves.
Because a protector glove is almost always shorter than the
corresponding rubber glove with which it is worn, and because the cuff
of the protector glove can easily be pulled back without removal, it is
easy to see markings on the cuff portion of the rubber glove beneath.
Any marking provided on the rubber glove in an area outside of the cuff
could not be seen with the protector glove in place.
---------------------------------------------------------------------------
\20\ The cuff area is the area near the reinforced edge of the
glove.
---------------------------------------------------------------------------
Paragraph (a)(2) of final Sec. 1926.97 contains electrical
requirements for rubber insulating blankets, matting, line hose,
gloves, and sleeves. As previously discussed, this provision uses
performance language, and does not contain a lengthy discussion of
specific test procedures.
Paragraph (a)(2)(i), which is being carried forward from the
proposed rule, requires electrical protective equipment to be capable
of withstanding the ac proof-test voltages in Table E-1 or the dc
proof-test voltages in Table E-2 of the standard.\21\ The proof-test
voltages listed in these tables have been derived from the current ASTM
standards, which also contain detailed test procedures that can be used
to determine whether electrical protective equipment is capable of
withstanding these voltages. As previously discussed, these details
were not included in the proposed rule, and this approach is being
carried forward in the final rule. Paragraph (a)(2)(i)(A) replaces
those details with a performance-oriented requirement that any proof
test can be used as long as it reliably indicates that the equipment
can withstand the proof-test voltage involved.
---------------------------------------------------------------------------
\21\ Existing Sec. 1910.137 contains Table I-2 through Table I-
6, and the proposal did not redesignate those tables. The final rule
revises all of Sec. 1910.137 so as to redesignate the tables,
starting with Table I-1. Consequently, existing Table I-2
corresponds to Table I-1 in the final rule, existing Table I-3
corresponds to Table I-2 in the final rule, existing Table I-4
corresponds to Table I-3 in the final rule, existing Table I-5
corresponds to Table I-4 in the final rule, and existing Table I-6
corresponds to Table I-5 in the final rule.
---------------------------------------------------------------------------
Mr. Muckerheide with Safety Consulting Services stated that the
standard for rubber insulating gloves, ASTM D120, lists a 280-
millimeter glove instead of the 267-millimeter glove listed in Table E-
1 in the proposed rule (Ex. 0180). He recommended making OSHA's
standard consistent with the ASTM standard or explaining the difference
in the standard.
OSHA is revising Table E-1 from the proposal in response to this
comment.
OSHA based proposed Table E-1 on Table I-2 in existing Sec.
1910.137, which, in turn, was based on the 1987 edition of ASTM D120.
Section 10.3.1 of ASTM D120-1987 lists four standard lengths for Class
0 rubber insulating gloves: 279, 356, 406, and 457 millimeters. Table 2
in that edition, however, listed 267 millimeters as the shortest length
glove even though the shortest standard length was 279 millimeters.
Unlike the 1987 edition of the consensus standard, the latest
edition, ASTM D120-2009, rounds up the standard metric sizes. Thus, the
relevant consensus standards for rubber insulating gloves list four
standard sizes of 280, 360, 410, and 460 millimeters for Classes 00, 0,
1, 2, 3, and 4 gloves. The table in the 2009 edition of the consensus
standard corresponding to Table 2 in the 1987 edition lists a 280-
millimeter glove as the shortest one.
Based on this information, OSHA concludes that the appropriate
length for the shortest glove is 280 millimeters. In addition, the
Agency does not consider the difference between the 280-millimeter
length recommended by Mr.
[[Page 20330]]
Muckerheide and the 267-millimeter proposed length to be substantial.
The 1987 and 2009 editions of the consensus standard each permit a
glove to vary from the standard length by as much as 13 millimeters.
Thus, a 280-millimeter glove can be as short as 267 millimeters.
However, to ensure consistency with the latest consensus standard, OSHA
is adopting, in Table E-1, both the 280-millimeter glove length in
place of the proposed 267-millimeter length and the rounded-up metric
sizes, as listed in the latest edition of the consensus standard.
Paragraph (a)(2)(i)(B), which is being adopted as proposed,
requires the proof-test voltage to be applied continuously for 1 minute
for insulating matting and 3 minutes for other insulating equipment.
These times are derived from on the proof-test times given in the ASTM
design standards and are appropriate for testing the design
capabilities of electrical protective equipment.
Paragraph (a)(2)(i)(C), which is being adopted as proposed,
requires rubber insulating gloves to be capable of withstanding the ac
proof-test voltage indicated in Table E-1 of the standard after a 16-
hour water soak. If rubber insulating gloves absorb water, a reduction
in insulating properties will result. Electrical work is sometimes
performed in the rain, and an employee's perspiration is often present
while the gloves are in use, so water absorption is a critical
property. The soak test is needed to ensure that rubber insulating
gloves can withstand the voltage involved under these conditions.
It should be noted that the soak test is a separate test from the
initial proof test. Gloves must be capable of passing both tests.
Paragraph (a)(2)(ii), which is being adopted as proposed, prohibits
the 60-hertz ac proof-test current from exceeding the values specified
in Table E-1 at any time during the test period. The currents listed in
the table have been taken from ASTM D120-09. This provision in the
final rule is important because, when an ac proof test is used on
gloves, the resulting proof-test current gives an indication of the
validity of the gloves' make-up, the dielectric constant of the type of
material used, its thickness, and the total area under test.
Under paragraph (a)(2)(ii)(A), which is being adopted without
change from the proposal, the maximum current for ac voltages at
frequencies other than 60 hertz is computed from the direct ratio of
the frequencies. This provision ensures that maximum current is
equivalent for varying frequencies.
Paragraph (a)(2)(ii)(B), which is being adopted as proposed,
specifies that gloves to be tested be filled with and immersed in water
to the depth given in Table E-3 and that water be added to or removed
from the glove as necessary to ensure that the water level is the same
inside and outside the glove. Table E-3 is derived from ASTM D120 and
is valid for the proof-test currents listed in Table E-1. During the ac
proof test, a gloves is filled with, and immersed in, water, and the
water inside and outside the glove forms the electrodes. The ac proof-
test current is dependent on the length of the portion of the glove
that is out of the water. Because the proof-test current is a function
of immersion depth, it is important to specify the depth in the
rule.\22\
---------------------------------------------------------------------------
\22\ Atmospheric conditions might invalidate the test results at
the clearances specified in Table E-3. For instance, under certain
atmospheric conditions, the air between the water inside and outside
the glove, which forms the two electrodes, might flash over, and
thereby invalidate the test results and damage the glove. As another
example, some atmospheric conditions can lead to excessive corona
and the formation of ozone that ventilation cannot sufficiently
dissipate. To account for these atmospheric conditions, final Table
E-3 contains a note that provides that, if atmospheric conditions
make these clearances impractical, the clearances may be increased
by a maximum of 25 mm. (1 in.).
---------------------------------------------------------------------------
Paragraph (a)(2)(ii)(C) requires that, after the 16-hour water soak
specified in paragraph (a)(2)(i)(C), the 60-hertz proof-test current
not exceed the values given in Table E-1 by more than 2 milliamperes.
The allowable proof-test current must be increased for proof tests on
gloves after a 16-hour water soak because the gloves absorb a small
amount of water, which results in slightly increased current during the
test. The final rule was derived from ASTM D120, which allows an
increase in the proof-test current of 2 milliamperes. If the proof-test
current increases more than 2 milliamperes, it indicates that the
gloves absorbed too much water. OSHA has revised this provision in the
final rule to indicate more clearly that it is a requirement rather
than an exception.
Paragraph (a)(2)(iii), which is being adopted without change from
the proposed rule, prohibits electrical protective equipment that has
been subjected to a minimum breakdown voltage test from being used to
protect employees from electrical hazards. The relatively high voltages
used in testing electrical protective equipment for minimum breakdown
voltage can damage the insulating material under test (even if the
equipment passes). The intent of this rule is to prohibit the use of
equipment that has been tested for minimum breakdown voltage under
conditions equivalent to those in the ASTM standards, because minimum
breakdown tests are destructive. Such tests are performed only on
equipment samples that are to be discarded.
Paragraph (a)(2)(iv), which is being adopted as proposed, requires
ozone-resistant material (Type II) to be capable of withstanding an
ozone test that can reliably indicate that the material will resist
ozone exposure in actual use. Standardized ozone tests are given in the
ASTM specifications listed in the note following paragraph
(a)(3)(ii)(B), and compliance with these specifications will be deemed
compliance with this OSHA requirement. Around high-voltage lines and
equipment, a luminous discharge, called electric corona, can occur due
to ionization of the surrounding air caused by a voltage gradient that
exceeds a certain critical value. The blue corona discharge is
accompanied by a hissing noise and by ozone, which can cause damage to
certain types of rubber insulating materials. Therefore, when there is
a chance that ozone may be produced at a work location, electrical
protective equipment made of ozone-resistant material is frequently
used. The final rule ensures that ozone-resistant material will, in
fact, be resistant to the deteriorating effects of the gas. The final
rule also provides that visible signs of ozone deterioration, such as
checking, cracking, breaks, and pitting, are evidence of failure to
meet the requirements for ozone-resistant material.\23\
---------------------------------------------------------------------------
\23\ ASTM F819-10, Standard Terminology Relating to Electrical
Protective Equipment for Workers, which is listed in the note
following paragraph (a)(3)(ii)(B), defines ``ozone cutting and
checking'' as: ``Cracks produced by ozone in a material under
mechanical stress.''
---------------------------------------------------------------------------
Paragraph (a)(3) addresses the workmanship and finish of electrical
protective equipment. Because physical irregularities can interfere
with the insulating properties of the equipment and thus reduce the
protection it affords, paragraph (a)(3)(i) prohibits the presence of
physical irregularities that can adversely affect the insulating
properties of the equipment and that can be detected by the tests or
inspections required under other provisions in Sec. 1926.97. In the
final rule, OSHA has revised the language for this provision to clarify
that ``harmful physical irregularities'' (the term used in the
proposal) means ``physical irregularities that can adversely affect the
insulating properties of the equipment.''
OSHA recognizes that some minor irregularities are nearly
unavoidable in the manufacture of rubber goods, and
[[Page 20331]]
these imperfections may be present in the insulating materials without
significantly affecting the insulation. Paragraph (a)(3)(ii), which is
being adopted without change from the proposal, describes the types of
imperfections that are permitted. Even with these imperfections,
electrical protective equipment must be capable of passing the
electrical tests specified in paragraph (a)(2).
Since paragraph (a) of final Sec. 1926.97 is written in
performance-oriented language, OSHA has included a note at the end of
the paragraph stating that rubber insulating equipment meeting the
requirements of the listed ASTM standards will be deemed in compliance
with the performance requirements of final Sec. 1926.97(a). This list
of ASTM standards references the latest revisions of those documents.
The Agency has reviewed the referenced ASTM standards and has found
them to provide suitable guidance for compliance with the performance
criteria of Sec. 1926.97(a).\24\
---------------------------------------------------------------------------
\24\ See the extended discussion, earlier in this section of the
preamble, on how to address future revisions of the listed consensus
standards, as well as earlier versions of the listed consensus
standards.
---------------------------------------------------------------------------
Paragraph (b). Paragraph (b) of final Sec. 1926.97 addresses
electrical protective equipment other than the rubber insulating
equipment addressed in paragraph (a). Equipment falling under this
paragraph includes plastic guard equipment, insulating barriers, and
other protective equipment intended to provide electrical protection to
employees.
Mr. Steven Theis, representing MYR Group, requested that OSHA
clarify that equipment complying with the ASTM and IEEE consensus
standards mentioned in the proposal would constitute compliance with
the final rule (Ex. 0162). In the proposal, OSHA pointed to ASTM F712.
OSHA has reviewed ASTM F712-06 (2011) and has found that it provides
suitable guidance for plastic guard equipment that employers can use to
comply with final Sec. 1926.97(b). To clarify the standard, OSHA has
added a new note to paragraph (b) to indicate that OSHA will consider
plastic guard equipment to conform to the performance requirements of
paragraph (b) if it meets, and is used in accordance with, ASTM F712-06
(2011).
In the proposal, the Agency also pointed to IEEE Std 516, Guide for
Maintenance Methods on Energized Power Lines, as support for the
electrical criteria in proposed paragraph (b). The Agency has not
referenced this consensus standard in the final rule. The IEEE standard
does not contain specifications or test methods for electrical
protective equipment. Instead, that consensus standard contains work
methods for live-line work, including criteria for evaluating
insulating tools and equipment. The Agency notes that the criteria for
evaluating insulating tools and equipment specified in the IEEE
standard are equivalent to the design criteria for electrical
protective equipment contained in paragraph (b) in the final rule.
Paragraph (b)(1), which is being adopted without substantive change
from the proposed rule, requires electrical protective equipment to be
capable of withstanding any voltage that might be imposed on it. The
voltage that the equipment must withstand includes transient
overvoltages, as well as the nominal voltage that is present on an
energized part of an electric circuit. Equipment withstands a voltage
if it maintains its integrity without flashover or arc through.
Equipment conforming to a national consensus standard for that type
of equipment will generally be considered as complying with this rule
if that standard contains proof testing requirements for the voltage
involved. In the proposal, OSHA considered accepting electrical
protective equipment that was capable of passing a test equivalent to
that described in ASTM F712 or IEEE Std 516 for types of equipment not
addressed by any consensus standard. OSHA invited comments on whether
these standards contain suitable test methods and whether equipment
passing those tests should be acceptable under the OSHA standard.
Rulemaking participants generally agreed that the consensus
standards provide suitable guidance for the equipment they addressed.
(See, for example, Exs. 0162, 0230.) For instance, IBEW stated:
The test methods referenced in these standards are suitable for
the types of equipment they are designed for . . . [This] equipment
[has] proven to be acceptable for use in this industry. [Ex. 0230]
Mr. Steven Theis of MYR Group agreed that the ``specified standards
contain suitable test methods'' (Ex. 0162).
As noted previously, OSHA has reviewed ASTM F712-06 (2011) and
found that it provides suitable guidance for compliance with final
paragraph (b). The Agency has included a note in the final rule to
indicate that plastic guard equipment is deemed to conform to the
performance requirements of paragraph (b) if the equipment conforms to
that consensus standard.
ASTM maintained that none of the ASTM standards listed in the
proposed standard contain an impulse test method for transient
overvoltages (Ex. 0148). The organization recommended that the final
rule reflect the current referenced consensus standards.
ASTM misconstrues paragraph (b)(1) of the final rule. Paragraph
(b)(1) of the final rule does not require impulse testing as ASTM
alleges. Rather, it is a performance requirement that equipment be
capable of withstanding both the steady-state voltages and transient
(or impulse) overvoltages, to which it will be subjected. Both types of
voltages can appear across the equipment during use. (See the summary
and explanation for final Sec. 1926.960(c)(1), later in this section
of the preamble, for a discussion of maximum transient overvoltages
that can appear on electric power lines and equipment.)
The typical test method contained in the ASTM standards for
determining minimum breakdown voltage (or withstand voltage) requires
testing at substantially higher voltages than those on which the
equipment will be used. (See, for example, Exs. 0048, 0053, 0071.) In
addition, minimum breakdown voltage testing is performed using a
steadily rising ac voltage, in contrast to impulse testing, in which
the overvoltage is applied for a very short period (id.). As noted in
IEEE Std 516-2009, the existing standards for insulating tools and
equipment do not address whether equipment passing the ac withstand
voltage tests in those standards will also withstand transient voltage
stresses (Ex. 0532). However, the IEEE standard suggests the use of a
1.3 ratio to convert ac withstand voltages to impulse, or transient,
voltages (id.). While the IEEE standard notes that research in this
area is ongoing, OSHA concludes that, in the absence of better
information, employers may rely on this ratio and multiply the ac
minimum breakdown voltage for protective equipment by this value to
determine if that equipment can withstand the expected transient
overvoltages on energized circuits. For example, insulating equipment
with a minimum breakdown, or withstand, voltage of 20,000 volts is
capable of withstanding a maximum transient overvoltage of 26,000
volts. This equipment would be acceptable for use to protect employees
from phase-to-ground exposures on a circuit operating at 15-kilovolt,
phase-
[[Page 20332]]
to-phase, with a 3.0 per unit maximum transient overvoltage.\25\
---------------------------------------------------------------------------
\25\ The maximum impulse voltage for this equipment is 20
kilovolts times 1.3, or 26 kilovolts. The maximum phase-to-ground
use voltage for the equipment is 26 kilovolts divided by the maximum
transient overvoltage in kilovolts, or 8.7 kilovolts. The phase-to-
phase circuit voltage for this exposure is 8.7 kilovolts times
[radic]3, or 15 kilovolts.
---------------------------------------------------------------------------
The Alabama Rural Electric Association of Cooperatives, requested
that OSHA provide a definition of ``transient overvoltage'' and a
suggested method of calculation (Ex. 0224).
IEEE Std 516-2009 contains the following suitable guidance
(although, as stated earlier, the standard does not contain
specifications or test methods for electrical protective equipment).
First, the IEEE standard contains the industry-recognized definition of
``transient overvoltage,'' which reads as follows:
Voltage that exceeds the maximum operating line-to-ground
voltage. This voltage may be the result of a transient or switching
surge. [Ex. 0532 \26\]
---------------------------------------------------------------------------
\26\ This is the definition of ``overvoltage,'' for which
``transient overvoltage'' is a synonym.
Second, the IEEE consensus standard contains methods of determining
the maximum transient overvoltage on an electric power generation,
transmission, or distribution system and, as noted earlier, discusses
comparing the ability of insulation equipment to withstand a transient
overvoltage based on its ability to withstand voltages under more
typical testing conditions (Ex. 0532). OSHA has not duplicated this
information in Sec. 1926.97. It is copyrighted information that is
publicly available. However, OSHA concludes that the IEEE standard
provides suitable guidance that can assist employers in complying with
paragraph (b)(1) and has added a reference to that consensus standard
in the note following that paragraph in the final rule.
The proposed rule invited comments on the need to set specific
electrical performance values in the standard and on whether the
electrical test criteria in ASTM F968 \27\ (which were summarized in
Table IV-1 and Table IV-2 of the preamble to the proposal (70 FR
34830)) could be applied to all types of electrical protective
equipment covered by proposed paragraph (b). IBEW commented that the
test values and use values in ASTM F968 are appropriate for
electrically insulating plastic guard equipment, but suggested that the
values are not suitable for other types of equipment because plastic
guard equipment is designed to perform differently than other types of
electrical protective equipment (Ex. 0230). Based on the IBEW comment,
OSHA has not included in the final rule the values from Table IV-1 and
Table IV-2. Moreover, since the final rule is written in performance
terms, inclusion of values like those included in these tables is
unnecessary.
---------------------------------------------------------------------------
\27\ The proposal noted that there were two ASTM standards
addressing plastic guard equipment, F712, which contained test
methods, and F968, which contained specifications (70 FR 34829-
34830, June 15, 2005). ASTM has since combined those two standards
into a single one, F712-06 (2011), which contains both test methods
and specifications for plastic guard equipment.
---------------------------------------------------------------------------
Final paragraph (b)(2) addresses the properties of insulating
equipment that limit the amount of current to which an employee is
exposed. Paragraph (b)(2)(i), which is being adopted without change
from the proposal, requires electrical protective equipment used as the
primary insulation of employees from energized parts to be capable of
passing a test for current (that is, a proof test) when subjected to
the highest nominal voltage on which the equipment is to be used.
Paragraph (b)(2)(ii), which is also being adopted as proposed, provides
that during the test, the equipment current may not exceed 1
microampere per kilovolt of phase-to-phase applied voltage. This
requirement will prevent dangerous electric shock to employees by
prohibiting use of both poor insulating materials and good insulating
materials that are contaminated with conductive substances (for
example, fiberglass-reinforced plastic coated with a conductive
finish). The limit for current has been derived from IEEE Std 516, and
OSHA believes such a limit is reasonable and appropriate.
In the preamble to the proposed rule, the Agency invited comments
on whether another value would better protect employees. IBEW commented
on this issue as follows:
The IEEE Standard 516 limit of 1 microampere per kilovolt of
phase-to-phase applied voltage is appropriate for testing equipment
used for primary insulation of employees from energized parts. This
limit has apparently worked to keep inferior protective equipment
of[f] the market. [Ex. 0230]
One commenter was concerned that the proposed current limit might
not protect employees in the event that a fault occurred (Ex. 0126).
OSHA believes that this concern is unfounded. During a fault, the
voltage on a circuit typically falls, and the equipment current would
fall with it. Although it is possible that transient overvoltages may
occur, either during a fault on an adjacent phase or during switching
operations, such overvoltages are extremely short in duration, and the
possible resulting increase in equipment current should not prove life-
threatening to employees.
ASTM stated that the only one of its standards that includes a 1-
microampere per kilovolt requirement is ASTM F712 on plastic guard
equipment (Ex. 0148). The organization recommended that OSHA limit this
provision to this type of equipment.
OSHA is not adopting ASTM's recommendation. The Agency notes that
ASTM F712 is not the only ASTM standard that limits equipment current
to values less than 1 microampere per kilovolt of test voltage. ASTM
F711, Standard Specification for Fiberglass-Reinforced Plastic (FRP)
Rod and Tube Used in Live Line Tools, limits maximum current during the
dielectric testing prescribed in that standard to values substantially
less than 1 microampere per kilovolt of test voltage (Ex. 0053).\28\
Further, as noted previously, this limit has been derived from IEEE Std
516. Thus, OSHA concludes that the 1-microampere limit is reasonable
and appropriate.\29\
---------------------------------------------------------------------------
\28\ Table 2 in ASTM F711-02 sets maximum leakage current for
different types of rod and tube used in live-line tools (Ex. 0053).
The highest value in this table is 14 microamperes. A note to the
table provides that, for special applications, the maximum
acceptable leakage current is twice the value listed in the table,
so that 28 microamperes is the highest acceptable leakage current.
The voltage applied during this test is 50 kilovolts. Thus, the
maximum current is less than 1 microampere per kilovolt.
\29\ It should be noted that the equipment current requirement
contained in paragraph (b)(2) does not apply to rubber insulating
equipment, which is covered by paragraph (a).
---------------------------------------------------------------------------
Note 1 to paragraph (b)(2), which is being adopted without
substantive change from the proposal, emphasizes that this paragraph
applies to equipment that provides primary insulation from energized
parts, which is consistent with the plain language of paragraph
(b)(2)(i). The note also clarifies that paragraph (b)(2) does not apply
to equipment used for secondary insulation or equipment used for brush
contact only. OSHA considers primary insulation to be the insulation
that is placed directly between an employee and an energized part or,
for live-line barehand work, between an employee and ground. Insulation
that supplements the primary insulation, for example, a second form of
insulation placed between the employee and ground (in addition to the
primary insulation), is secondary insulation.
Note 2 to paragraph (b)(2), which is being adopted without change
from the proposal, provides that when equipment is tested with ac
voltage, the current measured during the test consists of three
components: (1) Capacitive
[[Page 20333]]
current caused by the dielectric properties of the equipment being
tested, (2) conduction current through the equipment, and (3) leakage
current passing along the surface of the equipment. The conduction
current is negligible for materials typically used in insulating
equipment, and the leakage current should be small for clean, dry
insulating equipment. The capacitive component usually predominates
when insulating equipment is tested in good condition.
OSHA expects that the tests required under final paragraphs (b)(1)
and (b)(2) will normally be performed by the manufacturer during the
design process and periodically during the manufacturing process. The
Agency recognizes, however, that some employers might want to use
equipment that is made of insulating materials but that was not
intended by the manufacturer to be used as insulation. For example, a
barrier made of rigid plastic may be intended for use as a general
purpose barrier. An employer could test the barrier under paragraphs
(b)(1) and (b)(2), and, if the equipment passes the tests, it would be
acceptable for use as insulating electrical protective equipment.
Paragraph (c). Although existing construction standards do not
contain provisions for the care and use of insulating equipment, OSHA
believes provisions of this type can contribute greatly to employee
safety. Electrical protective equipment is, in large part, manufactured
in accordance with the latest ASTM standards. This would probably be
the case even in the absence of OSHA regulation. However, improper use
and care of this equipment can easily reduce, or even eliminate, the
protection afforded by this equipment. Therefore, OSHA proposed to add
new requirements for the in-service care and use of electrical
protective equipment to the design standards already contained in
existing Sec. 1926.951(a)(1). These new provisions are being adopted
in the final rule and will help ensure that these safety products
retain their insulating properties.
Paragraph (c)(1), which is being adopted without change from the
proposal, requires electrical protective equipment to be maintained in
a safe and reliable condition. This general, performance-oriented
requirement, which applies to all equipment addressed by final Sec.
1926.97, helps ensure that employees are fully protected from electric
shock.
Detailed criteria for the use and care of specific types of
electrical protective equipment are contained in the following ASTM
standards:
ASTM F478-09, Standard Specification for In-Service Care of
Insulating Line Hose and Covers.
ASTM F479-06 (2011), Standard Specification for In-Service Care of
Insulating Blankets.
ASTM F496-08, Standard Specification for In-Service Care of
Insulating Gloves and Sleeves.
The requirements in final paragraph (c)(2) are derived from these
standards.
Paragraph (c)(2) applies only to rubber insulating blankets,
covers, line hose, gloves, and sleeves. No consensus standards address
the care and use of other types of electrical protective equipment.
Whereas the material design specifications for rubber insulating
matting is addressed in Sec. 1926.97(a), the in-service care of this
matting is not covered by any ASTM standard or by existing Sec.
1910.137(b)(2). This type of equipment is generally permanently
installed to provide supplementary protection against electric shock.
Employees stand on the matting, and they are insulated from the floor,
which is one of the grounds present in the work area. This provides a
degree of protection from phase-to-ground electric shock. Because this
type of equipment is normally left in place after it is installed, and
because it is not relied on for primary protection from electric shock
(the primary protection is provided by other insulating equipment or by
insulating tools), it does not need to be tested on a periodic basis
and need not be subject to the same careful inspection before use that
other insulating equipment must receive. It should be noted, however,
that rubber insulating matting is still required to be maintained in a
safe, reliable condition under paragraph (c)(1).
In final paragraph (c)(2)(i) and Table E-4, which are being adopted
without substantive change from the proposal, OSHA is incorporating the
margins of safety recognized in the ASTM standards by restricting the
use of insulating equipment to voltages lower than the proof-test
voltages given in Table E-1 and Table E-2. The rubber insulating
equipment addressed in Sec. 1926.97(a) is to be used at lower voltages
than the voltages the equipment is designed to withstand. For instance,
although Class 4 equipment is currently designed to be capable of
withstanding voltages of up to 40 kilovolts, the maximum use voltage
for such equipment is 36 kilovolts (see also, for example, ASTM F496 on
the care and use of rubber insulating gloves and sleeves). The use of
insulating equipment at voltages less than the actual breakdown voltage
provides a margin of safety for the employee.
The maximum use voltage for class 3 equipment in Table E-4 in the
final rule is being corrected to 26,500. OSHA proposed that the maximum
use voltage for this class of equipment be 26,000. OSHA intended this
cell in the proposed table to read 26,500, as it is in Table I-5 in
existing Sec. 1910.137 and in the applicable consensus standards, but
an inadvertent error in printing resulted in the wrong number being
entered in the table.
In the proposed rule, Note 1 to Table E-4 explained how the maximum
use voltage of electrical protective equipment varies depending on
whether multiphase exposure exists. In the general case, electrical
protective equipment must be rated for the full phase-to-phase voltage
of the lines or equipment on which work is being performed. This
requirement ensures that employees are protected against the most
severe possible exposure, that is, contact between one phase conductor
and another. However, if the employee is only exposed to phase-to-
ground voltage, then the electrical protective equipment selected can
be based on this lower voltage level (nominally, the phase-to-phase
voltage divided by [radic]3). For example, a three-phase, solidly
grounded, Y-connected overhead distribution system could be run as
three phase conductors with a neutral or as three single-phase circuits
with one phase conductor and a neutral each. If only one phase
conductor is present on a pole, there is no multiphase exposure. If all
three phase conductors are present, the multiphase exposure can be
removed by insulating two of the phases or by isolating two of the
phases.\30\ After the insulation is in place or while the employee is
isolated from the other two phase conductors, there is no multiphase
exposure, and electrical protective equipment rated for the phase-to-
ground voltage could be used.\31\
---------------------------------------------------------------------------
\30\ Depending on the configuration of the system, an employee
could be isolated from two of the phases on the pole by approaching
one of the outside phase conductors and working on it from a
position where there is no possibility of coming too close to the
other two phase conductors. Isolation of the employee may be
impossible for some line configurations.
\31\ It should be noted that, until the multiphase exposure has
actually been removed, the phase-to-phase voltage remains the
maximum use voltage. Thus, the maximum use voltage of any insulation
used to ``remove phase-to-phase exposure'' must be greater than or
equal to the phase-to-phase voltage on the system.
---------------------------------------------------------------------------
In the proposal, the Agency requested information about whether
employees can be insulated or isolated from multiphase exposure to
ensure safe use of electrical protective equipment. The
[[Page 20334]]
comments generally supported the note to proposed Table E-4 and
previously codified in Table I-5 in existing Sec. 1910.137. (See, for
example, Exs. 0155, 0175, 0177, 0227.) Mr. Charles Kelly of EEI
---------------------------------------------------------------------------
explained:
[T]he typical practice in the industry is for employees to cover
the first phase from a position where the other phases cannot be
reached. This practice isolates employees from multiphase exposure.
Thus, the use of phase-to-ground voltage-rated equipment is safe.
Many utilities use a class of equipment which is rated for the
phase to ground voltage and rely on isolation and, to a lesser
extent, cover-up equipment, to remove the potential for a multiphase
exposure. Multiphase exposure is always avoided regardless of
whether protective equipment (gloves or gloves and sleeves) is rated
for the phase to phase voltage. Outside of rubber blankets, cover-up
equipment is considered secondary protection against brush contact.
Isolation from phases different than the one being worked on has
always and will continue to be the primary form of defense against a
phase to phase contact. The administrative control of cover on the
way in and uncover on the way out ensures the cover-up equipment is
placed from a position which isolates the worker. A worker will
always cover the first phase from a position where he cannot reach
the other phases. . . .
The terminology for maximum use voltage in ASTM F-819 has always
recognized this work practice: Thus, the ability to use phase to
ground voltage rated equipment is considered by the industry to be
both prudent and safe. [Ex. 0227; emphasis included in original]
Mr. Thomas Taylor of Consumers Energy agreed that these practices
isolate employees from multiphase exposure so that using equipment
based on the phase-to-ground voltage is safe (Ex. 0177). Ms. Salud
Layton of the Virginia, Maryland & Delaware Association of Electric
Cooperatives similarly believed that using isolating work practices can
minimize employee exposure. She stated that, while ``isolation or
insulation of the employee from differing potentials in the work zone
is limited to the ability of the insulating equipment to cover exposed
parts,'' work practices can greatly minimize employee exposure (Ex.
0175).
IBEW did not specifically object to the language in the note to
proposed Table E-4, but cautioned:
To ensure a worker is isolated from contact to an energized
circuit, the isolating device has to physically prohibit the worker
from making contact, and the device has to maintain the electrical
integrity of the energized circuit. Although the isolating device
does not need to be permanent, the device should have the physical
strength to ensure isolation in the case of a slip or fall, and
other types of unintentional movements. [Ex. 0230]
The union also maintained that ``the insulating value of the equipment
would have to be . . . rated at the phase-to-phase voltage of the
circuit being worked'' (id.).
Another commenter, however, objected to the preamble statements
that permitted using phase-to-ground rated insulation, stating:
``Industry practice has always been to use protective equipment rated
for the phase-to-phase rms voltage'' (Ex. 0184).
After considering the rulemaking record on this issue, OSHA
concludes that the note to proposed Table E-4 is necessary and
appropriate and has carried it forward into the final rule without
substantive change. The comments broadly supported the proposed note.
In addition, the note is identical to Note 1 to Table I-5 of existing
Sec. 1910.137. As observed by the commenters, when multiphase exposure
has been removed, by either isolating or insulating the employee, the
worker is adequately protected against electric shock from the
remaining phase-to-ground exposure by using phase-to-ground rated
electrical protective equipment. The extent to which the note was
supported contradicts the comment that industry practice is to use
phase-to-phase rated electrical protective equipment. To address IBEW's
concerns, OSHA emphasizes that any insulation used to remove multiphase
exposure must adequately protect workers carrying out their tasks from
factors that could negate the insulation's purpose. These factors
include, among other things, worker movements such as reaching for
tools, adjusting clothing or personal protective equipment, and slips
and falls. Finally, OSHA agrees with IBEW that insulation used to
protect employees from phase-to-phase exposure must be rated for the
phase-to-phase exposure. After all, until this protective equipment is
installed, there is phase-to-phase exposure.
Paragraph (c)(2)(ii), which is being adopted substantially as
proposed, requires insulating equipment to be visually inspected before
use each day and immediately after any incident that can reasonably be
suspected of causing damage. In this way, obvious defects can be
detected before an accident occurs. Possible damage-causing incidents
include exposure to corona and direct physical damage. Additionally,
rubber gloves must be subjected to an air test, along with the visual
inspection. In the field, this test usually consists of rolling the
cuff towards the palm so that air is entrapped within the glove. In a
testing facility, a mechanical inflater is typically used. In either
case, punctures and cuts can easily be detected. The note following
paragraph (c)(2)(ii) indicates that ASTM F1236-96 (2012), Standard
Guide for Visual Inspection of Electrical Protective Rubber Products,
contains information on how to inspect rubber insulating equipment and
descriptions and photographs of potential irregularities in the
equipment.
Electrical protective equipment could become damaged during use and
lose some of its insulating value. Final paragraph (c)(2)(iii), which
is being adopted without substantive change from the proposal, lists
types of damage that cause the insulating value of rubber insulating
equipment to drop, for example, a hole, tear, puncture, or cut, or an
embedded foreign object. The equipment may not be used if any of the
defects listed here or in paragraph (c)(2)(iii), or any other defect
that damages its insulating properties, is present.
Defects other than those listed in paragraph (c)(2)(iii) might
develop during use of the equipment and could also affect the
insulating or mechanical properties of the equipment. If such defects
are found, paragraph (c)(2)(iv), which is being adopted without change
from the proposal, requires the equipment to be removed from service
and tested in accordance with other requirements in paragraph (c)(2).
The results of the tests will determine if it is safe to return the
items to service.
Foreign substances on the surface of rubber insulating equipment
can degrade the material and lead to damage to the insulation.
Paragraph (c)(2)(v), which is being adopted as proposed, requires the
equipment to be cleaned as needed to remove any foreign substances.
Over time, certain environmental conditions can also cause
deterioration of rubber insulating equipment. Final paragraph
(c)(2)(vi), which is being adopted without substantive change from the
proposal, requires insulating equipment to be stored so that it is
protected from damaging conditions and substances, such as light,
temperature extremes, excessive humidity, and ozone. This requirement
helps the equipment retain its insulating properties as it ages. OSHA
has replaced the proposed term ``injurious substances and conditions''
with ``damaging substances and conditions'' to make it clear that the
equipment must be protected from substances and conditions that might
damage it rather
[[Page 20335]]
than substances and conditions that could injure workers.
In connection with this requirement, the Agency does not believe
that it is safe to store equipment on trucks for extended periods
between use if such storage would expose the equipment to extremes of
temperature or humidity. It may be necessary, under some circumstances,
to store equipment indoors during prolonged periods when employees are
not using the equipment. Workers are dependent upon electrical
protective equipment for their safety, and all reasonable means of
protecting it from unnecessary damage must be employed.
Rubber insulating gloves are particularly sensitive to physical
damage during use. Through handling conductors and other electrical
equipment, an employee can damage the gloves and lose the protection
they provide. For example, a sharp point on the end of a conductor
could puncture the rubber. To protect against damage, protector gloves
(made of leather) are worn over the rubber gloves. Paragraph
(c)(2)(vii) recognizes the extra protection afforded by leather gloves
and requires their use over rubber gloves, except under limited
conditions.
Proposed paragraph (c)(2)(vii)(A) provided that protector gloves
are not required with Class 0 or Class 00 gloves under limited-use
conditions, that is, when unusually high finger dexterity is needed for
small equipment and parts manipulation. This exception is necessary to
allow work to be performed on small energized parts. The Agency is
adopting the proposed provision with one revision. Under paragraph
(c)(2)(i) and Table E-4, which are being adopted without substantive
change from the proposal, the maximum voltage on which Class 0 and
Class 00 gloves can be used is 1,000 volts and 500 volts, respectively.
Mr. James A Thomas, President of ASTM International, pointed out that
Section 8.7.4 of ASTM F496 restricts the use of Class 00 rubber
insulating gloves to voltages of 250 volts, ac, or less when they are
used without protectors (Ex. 0148). Moreover, the consensus standard
also includes a maximum dc voltage for Class 00 gloves used without
protectors. Section 8.7.4 of ASTM F496-02a, Standard Specification for
In-Service Care of Insulating Gloves and Sleeves, states:
Protector gloves may be omitted for Class 0 gloves, under
limited use conditions, where small equipment and parts manipulation
require unusually good finger dexterity. Under the same conditions,
Class 00 gloves may be used without protectors, but only at voltages
up to and including 250 V a-c or 375 V d-c. Other classes of gloves
may be used without protector gloves for similar conditions only
where the possibility of physical damage to the gloves is unlikely
and provided the voltage class of the glove used is one class above
the voltage exposure. Rubber insulating gloves that have been used
without protectors shall not be used with protectors until given an
inspection and electrical retest. [Ex. 0051]
Based on Section 8.7.4 of ASTM F496-02a, the Agency concludes that
using Class 00 gloves without protectors on voltages above 250 volts,
ac, or 375 volts, dc, is considered to be unsafe by the experts on the
consensus standards committee.\32\ In the final rule, OSHA has
therefore included a new paragraph (c)(2)(vii)(B) addressing the use of
Class 00 gloves and incorporating these two voltage restrictions on the
use of Class 00 gloves without protectors. Consequently, OSHA
renumbered proposed paragraphs (c)(2)(vii)(B) and (c)(2)(vii)(C) as
paragraphs (c)(2)(vii)(C) and (c)(2)(vii)(D), respectively, and is
adopting them without substantive change.
---------------------------------------------------------------------------
\32\ ASTM F496-08 contains an identical requirement in Section
8.7.4.
---------------------------------------------------------------------------
As noted earlier, if protector gloves are not worn, there is a
danger a sharp object could puncture the rubber. The resulting hole
could endanger employees handling live parts because of the possibility
that current could arc through the hole to the employee's hand or that
leakage could develop and expose the employee to electric shock. At 250
volts, ac, or less, or 375 volts, dc, or less, for Class 00 gloves, and
at 1,000 volts or less for Class 0 gloves, the danger of current
passing through a hole is low, and an employee is protected against
electric shock as long as the live part itself does not puncture the
rubber and contact the employee's hand (59 FR 4328). Although the type
of small parts, such as small nuts and washers, encountered in work
covered by the exception are not likely to do this, the danger still
exists (id.). OSHA, therefore, is adopting, without substantive change
from the proposal, a note to final paragraph (c)(2)(vii)(A) that
provides that persons inspecting rubber insulating gloves used under
these conditions need to take extra care in visually examining them and
that employees using the gloves under these conditions need to take
extra care to avoid handling sharp objects.
Under paragraph (c)(2)(vii)(C), classes of rubber insulating gloves
other than Class 0 and Class 00 may be used without protector gloves
only if: (1) The employer can demonstrate that the possibility for
physical damage to the glove is small, and (2) gloves at least one
class higher than required for the voltage are used. For example, if a
Class 2 glove is used at 7,500 volts or less (the maximum use voltage
for Class 1 equipment pursuant to Table E-4) and the employer can
demonstrate that the possibility of damage is low, then protector
gloves need not be used. The final rule ensures that, under the
conditions imposed by the exception, damage is unlikely, and the rule
further reduces the risk to the employee by requiring thicker
insulation as a measure of extra physical protection that will better
resist puncture during use.\33\ In addition, the consensus standard
permits these classes of rubber insulating gloves to be used without
protectors under the same conditions (Ex. 0051). This exception does
not apply when the possibility of damage is significant, such as when
an employee is using a knife to trim insulation from a conductor or
when an employee has to handle moving parts, such as conductors being
pulled into place.
---------------------------------------------------------------------------
\33\ The thickness of the rubber increases with increasing class
of rubber insulating glove (for example, from Class 0 to Class 1).
---------------------------------------------------------------------------
Mr. Brockman with Farmers Rural Electric Cooperative Corporation
recommended, without explanation, that there should be no exception
permitting the use of rubber insulating gloves above Class 0 without
protectors (Ex. 0173).
The Agency rejects this recommendation. OSHA has explained that it
is safe to use Class 1 and higher rubber insulating gloves without
protectors under the conditions imposed by final paragraph
(c)(2)(vii)(C). OSHA notes, however, that electric power generation,
transmission, and distribution work covered by Sec. 1910.269 and
subpart V will nearly always pose a substantial probability of physical
damage to rubber insulating gloves worn without protectors. Thus, the
exception contained in paragraph (c)(2)(vii)(C) will rarely apply when
rubber insulating gloves are used for that type of work. However,
electrical protective equipment covered by Sec. 1926.97 is used
outside of electric power generation, transmission, and distribution
work, and there may be rare cases in these other types of work, for
example, in product manufacturing or testing laboratories, in which the
possibility of damage is slight.
To ensure that no loss of insulation has occurred, paragraph
(c)(2)(vii)(D) prohibits any rubber insulating gloves used without
protector gloves from being reused until the rubber gloves have been
tested in accordance with paragraphs (c)(2)(viii) and (c)(2)(ix),
[[Page 20336]]
which address required test voltages and the adequacy of the test
method, respectively. It should be noted that this testing is required
regardless of whether the glove is Class 0 or 00, as permitted in
paragraphs (c)(2)(vii)(A) and (c)(2)(vii)(B), or is Class 1 or higher,
as permitted in paragraph (c)(2)(vii)(C).
The National Electrical Contractors Association (NECA) and several
NECA chapters objected to the requirement to test rubber insulating
gloves after use without protectors. (See, for example, Exs. 0127,
0171, 0172, 0188.) They argued that there was no safety benefit and
that the increased frequency of testing would be a burden on employers.
For example, NECA stated:
The preamble doesn't include any information on electrical
injuries resulting from the failure of insulated gloves used without
leather protectors. Thus, requiring insulating gloves to be retested
after each use without a protector is a burden upon the employer
without offering any additional safety to employees. When using
gloves in Classes 1-4, protectors often must be removed for reasons
of manual dexterity, but the parts being worked on are fairly large
which minimizes the likelihood for damage. Current techniques of
inspecting and air-testing insulating gloves are sufficient to
identify damaged gloves. [Ex. 0171]
Another commenter, Mr. Tom Chappell of the Southern Company, argued
that an accelerated testing schedule (every 90 days instead of every 6
months) should be an acceptable alternative to testing each time a
rubber insulating glove is used without a protector (Ex. 0212).
OSHA disagrees with these objections. First, the consensus standard
also contains this requirement, which indicates that the consensus of
expert opinion considers that the requirement provides necessary
additional safety to employees (Ex. 0051). Second, a visual inspection
and air test may not detect minor damage that a voltage test will. Even
Mr. Chappell believes that additional testing is required to supplement
the visual inspection. Third, testing on an accelerated schedule would
allow such damage to go undetected until the next test, which could be
as long as 89 days under Mr. Chappell's recommended testing regimen.
Fourth, OSHA believes that the requirement to test rubber insulating
gloves used without protectors will strongly discourage any unnecessary
use of the gloves without protectors because of the expense of the test
and because testing gloves shortens their useful life. Finally, any
additional burden on employers is insubstantial, as employers are
already required to do much of the testing specified by the final rule.
In addition, existing Sec. 1910.137(b)(2)(vii)(B) already requires
gloves used without protectors to be tested before being used at a
higher voltage.\34\ Therefore, OSHA has carried forward proposed
paragraph (c)(2)(vii)(C) into the final rule without change.
---------------------------------------------------------------------------
\34\ Existing Sec. 1910.137(b)(2)(vii)(B) only requires gloves
to be tested before being used on a higher voltage. The final rule
adopts the proposed revision to this requirement so that rubber
insulating gloves used without protectors must be tested before
reuse after any use without protector gloves. For the purposes of
Sec. Sec. 1926.97(c)(2)(vii)(D) and 1910.137(c)(2)(vii)(D),
``reuse'' means any use after the limited use permitted without
protector gloves.
---------------------------------------------------------------------------
Paragraph (c)(2)(viii), which is being adopted as proposed,
requires insulating equipment to be tested periodically at the test
voltages and testing intervals specified in Table E-4 and Table E-5,
respectively. These tests will verify that electrical protective
equipment retains its insulating properties over time. Table E-4 lists
the retest voltages that are required for the various classes of
protective equipment, and Table E-5 presents the testing intervals for
the different types of equipment. These test voltages and intervals
were derived from the relevant ASTM standards.
Mr. Thomas Frank of Ameren Company objected to the inclusion of
rubber insulating line hose in proposed Table E-4 and Table E-5 (Ex.
0209). He argued that the applicable consensus standard does not
designate a test method for this equipment.
OSHA disagrees with this objection. Contrary to Mr. Frank's
assertion, ASTM D1050, Standard Specification for Rubber Insulating
Line Hose, does contain test methods for rubber insulating line hose
(Ex. 0068).\35\ Table E-5, which specifies test intervals for rubber
insulating equipment, only requires testing of line hose either when
the insulating value is suspect \36\ or after repair. In these cases,
testing is the only way of ensuring that the insulating properties of
the equipment are at an acceptable level (id.). After all, paragraph
(a)(2)(i) requires rubber insulating equipment to be capable of passing
electrical tests. When the insulating value of the equipment is
suspect, or when the equipment has been altered, as it will have been
during any repair, there is simply no way other than testing to
determine whether the equipment retains the required insulating value.
Therefore, OSHA has carried proposed Table E-4 and Table E-5 into the
final rule without substantive change.
---------------------------------------------------------------------------
\35\ Both the 1990 edition of ASTM D1050 referenced in the note
to existing Sec. 1910.137(b)(2)(ix) and the 2005 edition referenced
in the note to final Sec. 1926.97(c)(2)(ix) contain test methods
for rubber insulating line hose.
\36\ The insulating value of rubber insulating equipment is
suspect when the inspection required by final paragraph (c)(2)(ii)
leads to questions about the quality of the insulation or uncovers
any damage to the insulating equipment.
---------------------------------------------------------------------------
Paragraph (c)(2)(ix), which is being adopted without change from
the proposal, establishes a performance-oriented requirement that the
method used for the tests required by paragraphs (c)(2)(viii) and
(c)(2)(xi) (the periodic and postrepair tests, respectively) give a
reliable indication of whether the electrical protective equipment can
withstand the voltages involved. As this is a performance-oriented
standard, OSHA does not spell out detailed procedures for the required
tests, which will obviously vary depending on the type of equipment
being tested.
Following paragraph (c)(2)(ix) is a note stating that the
electrical test methods in various listed ASTM standards on rubber
insulating equipment will be deemed to meet the performance
requirement. As mentioned earlier, this note does not mean that OSHA is
adopting the listed ASTM standards by reference. In enforcing Sec.
1926.97(c)(2)(ix), the Agency will accept any test method that meets
the performance criteria of the OSHA standard.
Once equipment has undergone in-service inspections and tests, it
is important to ensure that any failed equipment is not returned to
service. Final paragraph (c)(2)(x), which is being adopted without
change from the proposal, prohibits the use of electrical protective
equipment that failed the required inspections and tests. Paragraph
(c)(2)(x) does, however, list the following acceptable means of
eliminating defects and rendering the equipment fit for use again.
The final standard permits defective portions of rubber line hose
and blankets to be removed in some cases. The result would be a smaller
blanket or a shorter length of line hose. Under the standard, Class 1,
2, 3, and 4 rubber insulating blankets may only be salvaged by severing
the defective portions of the blanket if the resulting undamaged area
is at least 560 millimeters by 560 millimeters (22 inches by 22
inches). For these classes, smaller sizes cannot be reliably tested
using standard test methods. Although the standard does not restrict
the size of Class 0 blankets, OSHA believes that practical
considerations in testing and using Class 0 blankets will force
employers to similarly limit the size of these blankets when they have
been repaired by cutting out a damaged portion.
[[Page 20337]]
Obviously, gloves and sleeves cannot be repaired by removing a
defective portion; however, the final standard permits patching rubber
insulating gloves and sleeves if the defects are minor. Blankets may
also be patched under certain circumstances. Moreover, rubber
insulating gloves and sleeves with minor surface blemishes may be
repaired with a compatible liquid compound. In all cases (that is,
whether a patch is applied or a liquid compound is employed), the
repaired area must have electrical and physical properties equal to
those of the material being repaired.
Repairs performed in accordance with the standard are unlikely to
fail because the rule requires the use of compatible patches or
compatible liquid compounds and requires the repaired area to have
electrical and physical properties equal to those of the surrounding
material. However, to minimize the possibility that glove repairs will
fail, repairs to rubber insulating gloves outside the gauntlet area
(that is, the area between the wrist and the reinforced edge of the
opening) are not allowed. OSHA stresses that the final rule does not
permit repairs in the working area of the glove, where the constant
flexing of the rubber during the course of work could loosen an ill-
formed patch. A failure of a patch or liquid compound in this area of
the glove would likely lead to injury very quickly. On the other hand,
the gauntlet area of rubber insulating gloves is not usually in direct
contact with energized parts. If a patch fails in this area, a worker
is much less likely to be injured.
Farmers Rural Electric Cooperative Corporation recommended, without
explanation, that OSHA not permit patching of rubber insulating gloves
and sleeves (Ex. 0173). OSHA rejects this recommendation. OSHA has
explained that it is safe only to patch insulating gloves and sleeves
under the conditions imposed by final paragraph (c)(2)(x)(D).
Once the insulating equipment has been repaired, it must be
retested to ensure that any patches are effective and that there are no
other defects present. Such retests are required under paragraph
(c)(2)(xi), which is being adopted without change from the proposal.
Employers, employees, and OSHA compliance staff must have a method
of determining whether the tests required under this section have been
performed. Paragraph (c)(2)(xii) requires this determination to be
accomplished by means of certification by the employer that equipment
has been tested in accordance with the standard. The certification is
required to identify the equipment that passed the test and the date it
was tested. Typical means of meeting this requirement include logs and
stamping test dates on the equipment. A note following paragraph
(c)(2)(xii) explains that these means of certification are acceptable.
As explained under the summary and explanation for paragraph (a)(1)(ii)
earlier in this section of the preamble, the final rule, unlike the
proposal, includes an explicit requirement that employers make this
certification available upon request to employees and their authorized
representatives. OSHA has also clarified the requirement to indicate
that the certification records must be made available upon request to
the Assistant Secretary for Occupational Safety and Health.
B. Subpart V, Electric Power Transmission and Distribution
OSHA is revising subpart V of its construction standards. This
subpart contains requirements designed to prevent deaths and other
injuries to employees performing construction work on electric power
transmission and distribution installations. OSHA based the revision of
subpart V primarily on the general industry standard at Sec. 1910.269,
Electric power generation, transmission, and distribution, which the
Agency promulgated in January 1994. The final standard revises the
title of subpart V from ``Power Transmission and Distribution'' to
``Electric Power Transmission and Distribution'' to make it clear that
the subpart addresses ``electric'' power transmission and distribution
(and not mechanical power transmission) and to match the title of Sec.
1910.269 more closely.
1. Section 1926.950, General
Section 1926.950 defines the scope of final subpart V and includes,
among other provisions, general requirements for training and the
determination of existing workplace conditions. Paragraph (a)(1)(i) of
final Sec. 1926.950 is adopted without change from proposed Sec.
1926.950(a)(1) and sets the scope of revised subpart V. This paragraph
has been taken largely from existing Sec. 1926.950(a) and (a)(1).
Subpart V applies to the construction of electric power transmission
and distribution installations. In accordance with existing Sec.
1926.950(a)(1) and Sec. 1910.12(d), paragraph (a)(1)(i) of final Sec.
1926.950 provides that ``construction'' includes the erection of new
electric transmission and distribution lines and equipment, and the
alteration, conversion, and improvement of existing electric
transmission and distribution lines and equipment.
As noted in Section II, Background, earlier in this preamble,
rulemaking participants generally supported OSHA's goal of providing
consistency between Sec. 1910.269 and subpart V. However, many
commenters urged the Agency to combine Sec. 1910.269 and subpart V
into a single standard applicable to all electric power generation,
transmission, and distribution work. (See, for example, Exs. 0099,
0125, 0127, 0146, 0149, 0151, 0152, 0153, 0156, 0159, 0161, 0164, 0172,
0175, 0179, 0180, 0183, 0186, 0188, 0202, 0206, 0225, 0226, 0229, 0231,
0233, 0239, 0241, 0401; Tr. 291-294, 542-543, 1235-1236, 1282-1283,
1322, 1332.) These rulemaking participants argued that several benefits
would result from combining Sec. 1910.269 and subpart V into a single
standard, including:
Lessening confusion--a single standard would eliminate
questions about whether work is construction or maintenance and ensure
uniform interpretations for all generation, transmission, and
distribution work (see, for example, Exs. 0146, 0151, 0152, 0156, 0175,
0183, 0202, 0233);
Facilitating compliance and reducing costs--under a single
standard, employers would be able to train workers in a single set of
rules rather than one set for construction and another set for
maintenance (Tr. 293-294); and
Eliminating the need to maintain and update two standards
over time (see, for example, Exs. 0127, 0149, 0152, 0179).
OSHA is rejecting these recommendations to combine Sec. 1910.269
and subpart V into a single standard. First, OSHA does not believe that
employers will have to maintain separate sets of rules for construction
and maintenance. Because the final rule largely adopts identical
requirements for construction and maintenance, OSHA expects that
employers will be able to fashion a single set of rules, consistent
with both Sec. 1910.269 and subpart V, that apply regardless of the
type of work being performed. In the final standard, OSHA is adopting
different rules in a few cases, based on fundamental differences
between the other construction standards in part 1926 and the general
industry standards in part 1910. For example, Sec. 1910.269 and
subpart V reference the general industry and construction standards on
medical services and first aid in Sec. Sec. 1910.151 and 1926.50,
respectively. These general industry and construction standards set
slightly different requirements for
[[Page 20338]]
medical services and first aid. Similarly, Sec. 1910.269 and subpart V
separately reference the general industry and construction standards on
ladders. The differences between the construction and general industry
standards that may apply to electric power generation, transmission,
and distribution work go well beyond the few examples described here.
It is beyond the reach of this rulemaking to unify all of the different
general industry and construction standards that apply to electric
power generation, transmission, and distribution work. Consequently,
any employer that performs both general industry and construction work
will need to ensure compliance with applicable provisions in both part
1910 and part 1926. Even if OSHA were to adopt one electric power
generation, transmission, and distribution standard, employers would
still be faced with differences between other requirements in the
general industry and construction standards.
Second, commenters' concerns over differences in language and
interpretation are largely unfounded. As noted in the preamble to the
proposal, one of the primary goals of this rulemaking is to make the
requirements for construction and maintenance consistent with one
another. The Agency will take steps to ensure that interpretations of
identical requirements in the two standards are the same. Toward this
end, the Agency is including a note to final Sec. 1926.950(a)(1)(i) to
indicate that an employer that complies with Sec. 1910.269 generally
will be considered in compliance with the requirements in subpart V.
There is a minor exception for provisions in subpart V that incorporate
by reference requirements from other subparts of part 1926. For those
provisions of subpart V, the employer must comply with the referenced
construction standards; compliance with general industry standards
referenced in comparable provisions of Sec. 1910.269 will not be
sufficient. The new note to Sec. 1926.950(a)(1) should allay the
concerns of commenters about potentially inconsistent interpretations
of identical requirements in Sec. 1910.269 and subpart V. The note
should also assure employers that they can adopt uniform work practices
for the construction, operation, and maintenance of electric power
generation, transmission, and distribution installations with regard to
these requirements.
Ameren Corporation was concerned that OSHA would ``make significant
and costly changes to the current 1910.269 standard without adequately
providing the opportunity for utilities to study and comment on the
impact to these changes'' (Ex. 0209). The company requested that the
Agency provide the utility industry with an opportunity to comment on
any changes to existing Sec. 1910.269 that were not identified in the
proposal.
OSHA does not believe additional notice and opportunity for comment
is necessary for any of the revisions to Sec. 1910.269 being made in
this final rule. In the preamble to the proposed rule, the Agency
stated:
OSHA expects that final Subpart V will differ from proposed
Subpart V because of changes adopted based on the rulemaking record.
When the final rule is published, the Agency intends to make
corresponding changes to Sec. 1910.269 to keep the two rules the
same, except to the extent that substantial differences between
construction work and general industry work warrant different
standards. [70 FR 34892]
The Agency met this objective in this final rule. OSHA concludes that
any revisions to existing Sec. 1910.269 adopted in the final rule are
based on the record considered as a whole and are a logical outgrowth
of the rulemaking record.
Mr. Anthony Ahern with Ohio Rural Electric Cooperatives recommended
that OSHA combine Sec. Sec. 1910.137 and 1926.97, or simply reference
Sec. 1910.137, instead of creating a new section on electrical
protective equipment in the construction standards (Ex. 0186).
OSHA rejects this request. New Sec. 1926.97 applies to all of
construction, not just electric power generation, transmission, and
distribution work. Final Sec. 1926.97 imposes no additional burden on
employers beyond what would apply under Sec. 1910.137. Duplicating the
Sec. 1910.137 requirements in part 1926 meets the needs of
construction employers and employees for ready access to the protective
equipment standards that are applicable to their work.
Ms. Salud Layton of the Virginia, Maryland & Delaware Association
of Electric Cooperatives objected to the word ``improvement'' in
proposed Sec. 1926.950(a)(1) (Ex. 0175). Ms. Layton also expressed
concern about a part of the preamble to the proposed rule in which OSHA
used the term ``repair'' to describe construction activities (id.). She
commented:
As defined in the regulation, ``construction'' includes
``erection of new transmission and distribution lines and equipment,
and the alteration, conversion, and improvement of existing electric
transmission and distribution lines and equipment.[''] While
``alteration'' and ``conversion'' can be construed as construction
activities, the term ``improvement'' is too broad. Many maintenance
activities are considered improvements. Additionally, the preamble
uses the term ``repair'' in describing construction activities.
Repairs are typically considered maintenance activities in our
industry, further complicating this issue. [id.]
OSHA considered Ms. Layton's comments, but decided to adhere to its
longstanding practice of treating ``improvements'' and ``repairs'' as
construction. The term ``improvement'' has been a part of the
definition of construction work under Subpart V for decades.
Furthermore, as noted earlier, this definition is codified in 29 CFR
1910.12(d). In addition, removing the term would have no practical
effect on the definition, as all improvements are ``alterations,'' a
term to which she did not object. OSHA has consistently treated
``repairs'' as construction work as well. See Sec. 1910.12(b)
(``Construction work means work for construction, alteration, and/or
repair. . . .''). OSHA recognizes that there may not always be a clear
distinction between construction repair and general industry
maintenance and has provided clarification in numerous letters of
interpretation, including the Agency's Memorandum for Regional
Administrators dated August 11, 1994.\37\ That memorandum explains
construction work as follows:
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\37\ This document is available at http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=21569.
[C]onstruction work is not limited to new construction. It
includes the repair of existing facilities. The replacement of
structures and their components is also considered construction
work.
* * * * *
There is no specified definition for ``maintenance'', nor a
clear distinction between terms such as ``maintenance'', ``repair'',
or ``refurbishment.'' ``Maintenance activities'' can be defined as
making or keeping a structure, fixture or foundation (substrates) in
proper condition in a routine, scheduled, or anticipated fashion.
This definition implies ``keeping equipment working in its existing
state, i.e., preventing its failure or decline.'' However, this
definition, (taken from the directive on confined spaces) is not
dispositive; and, consequently, determinations of whether a
contractor is engaged in maintenance operations rather than
construction activities must be made on a case-by-case basis, taking
into account all information available at a particular site.
[Emphasis included in original.]
(See also, for example, letter to Raymond Knobbs (Nov. 18, 2003) and
letter to Randall Tindell (Feb. 1, 1999).\38\) In addition, the
Occupational
[[Page 20339]]
Safety and Health Review Commission (OSHRC) has addressed this issue.
(See, for example, Gulf States Utilities Co., 12 BNA OSHC 1544 (No. 82-
867, Nov. 20, 1985).) In any event, one of OSHA's primary objectives in
this rulemaking is to make Sec. 1910.269 and subpart V more consistent
with each other. Therefore, going forward, the distinction between
construction and maintenance will be of much less significance to
employers covered by these standards. Even Ms. Layton recognized that
her concern about the definition of construction was only relevant
``[i]f the regulations are not the same'' (Ex. 0175). The proposed
definition of ``construction'' in Sec. 1926.950(a)(1) is, therefore,
being carried forward into the final rule without change.
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\38\ The Knobbs and Tindell letters are available at: http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=24789 and http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=22687,
respectively.
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Mr. Kenneth Stoller of the American Insurance Association inquired
about the applicability of the revised standards to insurance industry
employees, stating:
AIA is concerned that the new contractor obligations
contemplated by the proposal with respect to training, reporting,
record-keeping and personal protective equipment may unintentionally
apply to insurance industry employees, whose only obligation is to
inspect--but not work on--some of the electrical equipment in
question. While our members are neither electrical utilities nor
electrical construction companies, some of their commissioned
inspectors are required to visit and inspect equipment that is both
energized and open. In addition, some state laws identify certain
equipment (such as pressure vessels) located within close proximity
to energized and open electrical apparatus that must be inspected
periodically.
Subjecting insurers to these new requirements would require
individual companies to spend tens of thousands of dollars per year
for additional training and equipment, notwithstanding the fact that
the proposal's preamble indicates that these obligations should only
apply to entities performing maintenance and repairs, not simply
inspections. Accordingly, we recommend that the proposal be amended
to explicitly exempt insurance industry employees from any
obligations it places on contractors. [Ex. 0198]
OSHA considered this comment, but will not be exempting insurance
industry employees from the final rule. Existing Sec. 1910.269 already
covers inspections of electric power generation, transmission, and
distribution installations performed by insurance company workers as
work ``directly associated with'' these installations. In this regard,
existing Sec. 1910.269(a)(1)(i)(D) states that ``[Sec. 1910.269
applies to:] (D) Work on or directly associated with [electric power
generation, transmission, and distribution and other covered]
installations. . . .'' OSHA, therefore, interprets existing Sec.
1910.269(a)(1)(i)(D) as applying to inspections conducted by insurance
company employees because the purpose of these inspections is to assure
the safety of these installations and employees working on or near
them. Insurance inspections are similar to inspections conducted by
electric utilities and their contractors. The preamble to the 1994
final rule adopting Sec. 1910.269 specifically listed ``inspection''
as an activity covered by that standard (59 FR 4333). Section 1910.269
applies to this type of work without regard to the industry of the
employer that has employees performing the inspections.\39\ Thus,
existing Sec. 1910.269 covers this work as it pertains to general
industry and will continue to cover this work after the final rule
becomes effective. However, insurance inspections may fall under
subpart V, instead of Sec. 1910.269, to the extent the inspections are
construction work. Whether an insurance inspection constitutes
construction depends on the characteristics of the work performed.
(See, for example, CH2M Hill, Inc. v. Herman, 192 F.3d 711 (7th Cir.
1999).)
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\39\ See the letter of interpretation dated June 9, 1999, to Mr.
G. William Doody, which is available at http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=22749.
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OSHA does not believe that the final rule will impose substantial
additional costs on the insurance industry. Existing Sec. 1910.269
currently covers the vast majority of insurance inspections on electric
power installations. Of the new provisions this final rule is adding to
Sec. 1910.269, the ones that impose the greatest costs on all
employers are unlikely to impose significant economic burdens on
inspections conducted by insurance industry workers. First, the minimum
approach distance and arc-flash-protection requirements usually will
not apply to the insurance industry because insurance industry
inspectors will almost never be qualified employees (see final
Sec. Sec. 1910.269(l) and 1926.960).\40\
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\40\ According to final Sec. 1910.269(a)(1)(ii)(B), Sec.
1910.269 does not apply to electrical safety-related work practices
covered by Subpart S. Subpart S applies to work performed by
unqualified persons on, near, or with electric power generation,
transmission, and distribution installations (see Sec.
1910.331(b)).
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Second, the host-contractor provisions in Sec. Sec. 1910.269(a)(3)
and 1926.950(c) should not impose significant costs on the insurance
industry. As explained in Section VI, Final Economic Analysis and
Regulatory Flexibility Analysis, later in this preamble, OSHA estimated
the costs of the host-contractor provisions on a per-project basis;
that is, employers will incur costs once for each project. OSHA
believes that its estimate of the number of projects fully accounts for
projects that involve inspections, including insurance inspections, of
electric power generation, transmission, and distribution
installations, though OSHA allocated the costs to contract employers
generally. OSHA anticipates that the number of insurance inspections
will be a small fraction of the number of overall projects. If 1 in
every 1,000 projects involves an insurance inspection, then the total
costs related to employers' complying with the host-contractor
provisions for insurance inspections would be less than $20,000 per
year, half of which host employers would bear. The Agency deems such
costs an inconsequential portion of the overall costs of the final rule
and not significant for the insurance industry.
Third, OSHA does not believe that insurance inspections will
typically involve employees working from aerial lifts or on poles,
towers, or similar structures covered by the personal protective
equipment requirements in final Sec. Sec. 1910.269(g)(2)(iv)(C) and
1926.954(b)(3)(iii). Mr. Stoller's lone example of work potentially
affected by the final rule, the inspection of pressure vessels, is not
generally covered by those provisions, which primarily affect work
involving overhead transmission and distribution lines. OSHA is unaware
of any other insurance inspection work that would involve employees
working from aerial lifts or on poles, towers, or similar structures.
Even if such inspections are taking place, they should be rare, and the
Agency deems costs associated with such inspections an inconsequential
portion of the overall costs of the final rule, and inconsequential as
well for the insurance industry.
Paragraph (a)(1)(ii) of final Sec. 1926.950 provides that subpart
V does not apply to electrical safety-related work practices for
unqualified employees. Electrical safety-related work-practice
requirements for these employees are contained in other subparts of
part 1926, including subparts K, N, and CC. For example, Sec.
1926.416(a)(1) in subpart K prohibits employers from permitting an
employee to work in such proximity to any part of an electric power
circuit that the employee could contact the electric power circuit in
the course of work, unless the employee is protected against
[[Page 20340]]
electric shock by deenergizing the circuit and grounding it or by
guarding it effectively by insulation or other means. Deenergizing
circuits and insulating them from employees protects unqualified
employees from electric shock. By contrast, subpart V, in final Sec.
1926.960(b)(1)(i), permits only qualified employees to work on or with
exposed energized lines or parts of equipment. Final Sec.
1926.960(c)(1)(iii) requires the employer to ensure that no employee
approaches or takes any conductive object closer to exposed energized
parts than the minimum approach distances, established by the employer
under final Sec. 1926.960(c)(1)(i), unless the employee is insulated
from the energized part (for example, with rubber insulating gloves and
sleeves), or the energized part is insulated from the employee and from
any other conductive object at a different potential, or the employee
is performing live-line barehand work in accordance with Sec.
1926.964(c).
Subpart CC generally requires employers to ensure that employees
maintain minimum clearances when operating cranes or derricks near
overhead power lines. Paragraph (a)(6) of Sec. 1926.600 also generally
requires minimum clearances when mechanical equipment is operated near
overhead power lines. In part because subpart V establishes
requirements for qualified employees operating mechanical equipment,
Sec. 1926.959(d)(1) of this final rule generally requires mechanical
equipment, including cranes and derricks, to maintain minimum approach
distances that are significantly less than the minimum clearance
distances in either Sec. 1926.600(a)(6) or subpart CC.
OSHA did not expressly propose to exempt electrical safety-related
work practices used by unqualified employees from subpart V; however,
the preamble to the proposal made it clear that subpart V's
requirements did not apply to electrical safety-related work practices
used by unqualified employees. (See, for example, 70 FR 34857.)
Specifically, the Agency stated: ``The general approach taken in the
proposed revision of Subpart V is to provide safety-related work
practices for qualified employees to follow when they are performing
electric power transmission and distribution work. Safe work practices
for unqualified employees are not addressed in proposed Subpart V . .
.'' (70 FR 34857). Information in the record shows that the
requirements in subpart V are not sufficiently protective for
unqualified employees. (See, for example, Exs. 0077, 0134.) For
example, NFPA 70E contains electrical safety-related work practice
requirements to protect unqualified employees from electrical hazards
posed by electric power transmission and distribution installations
(Ex. 0134).\41\ The consensus standard requires unqualified employees
to maintain minimum approach distances that are substantially greater
than the minimum approach distances in Subpart V.
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\41\ See NFPA 70E-2004, Section 110.1, which sets the scope for
Article 110, General Requirements for Electrical Safety-Related Work
Practices (Ex. 0134).
---------------------------------------------------------------------------
OSHA designed subpart V to mirror the requirements in Sec.
1910.269. Existing Sec. 1910.269(a)(1)(i)(A), which is being adopted
in the final rule without substantive change, provides that Sec.
1910.269 applies to ``[p]ower generation, transmission, and
distribution installations, including related equipment for the purpose
of communication or metering, which are accessible only to qualified
employees.'' Existing (and final) Sec. 1910.269(a)(1)(ii)(B)
explicitly excludes ``electrical safety-related work practices . . .
covered by subpart S of this part'' from coverage. According to Sec.
1910.331(b), subpart S covers electrical safety-related work practices
for unqualified employees working on, near, or with installations for
the generation, transmission, or distribution of electric energy. Thus,
Sec. 1910.269 does not apply to electrical safety-related work
practices for unqualified employees.
In conclusion, OSHA notes that the electrical safety-related work
practices required by Subpart V do not provide sufficient protection
for unqualified employees. Therefore, Subpart V does not and should not
cover such work practices. The final rule, in Sec. 1926.950(a)(1)(ii),
expressly clarifies that Subpart V does not cover electrical safety-
related work practices for unqualified employees.
Paragraph (a)(2) of final Sec. 1926.950, which is being adopted
without change from the proposal, explains that subpart V applies in
addition to all other applicable standards contained in part 1926. This
paragraph also provides that employers doing work covered by subpart V
are not exempt from complying with other applicable provisions in part
1926 by the operation of Sec. 1910.5(c). Paragraph (a)(2) also
clarifies that specific references in subpart V to other sections of
part 1926 are provided for emphasis only. In accordance with this
provision, all construction industry standards continue to apply to
work covered by subpart V unless there is an applicable exception in
subpart V or elsewhere in part 1926. For example, Sec. 1926.959(a)(2)
requires the critical safety components of mechanical elevating and
rotating equipment to be visually inspected before each shift. This
provision does not supersede Sec. 1926.1412(d), which details specific
requirements for the visual inspection of cranes each shift by a
competent person. In a change that OSHA considers nonsubstantive, Sec.
1910.269(a)(1)(iii) is being amended to include language equivalent to
that in Sec. 1926.950(a)(2).
Subpart V has never applied to work on electric power generation
installations. Proposed Sec. 1926.950(a)(3) provided that Sec.
1910.269 would cover all work, including construction, involving
electric power generation installations. In the preamble to the
proposal, the Agency explained that the construction of an electric
power generation station normally poses only general construction
hazards, that is, hazards not addressed by subpart V (70 FR 34833).
OSHA recognized, however, the following two exceptions to this
conclusion: (1) during the final phase of construction of a generating
station, when electrical and other acceptance testing of the
installation is being performed, and (2) during ``reconstruction,''
when portions of the generating station not undergoing construction are
still in operation (id.). In both of these scenarios, construction work
at a generation station exposes workers to hazards akin to those posed
by the operation and maintenance of a generation plant. Because the
Agency believed that these two operations were more like general
industry work than construction, it deemed it appropriate for employers
to follow Sec. 1910.269 in those situations (id.). Rather than repeat
the relevant portions of Sec. 1910.269 in subpart V, OSHA proposed
that Sec. 1910.269 apply to all work involving electric power
generation installations.
The Agency requested comments on whether Sec. 1910.269 should
apply to all work involving electric power generation installations, as
proposed, or whether instead the relevant requirements from Sec.
1910.269 should be contained in final subpart V for purposes of
construction work involving electric power generation installations.
OSHA received numerous responses to this request. (See, for example,
Exs. 0125, 0127, 0130, 0149, 0151, 0155, 0159, 0162, 0163, 0172, 0177,
0179, 0186, 0188, 0201, 0208, 0209, 0212, 0213, 0227, 0230.) Commenters
largely supported OSHA's proposed approach and the language making
Sec. 1910.269 applicable to all work involving electric power
generation installations. For
[[Page 20341]]
example, Mason County Public Utility District 3 commented: ``We believe
the proposed language referencing 1910.269 for all work involving
electric power generation installations should be adopted'' (Ex. 0125).
Siemens Power Generation responded similarly, explaining, ``Subpart V
should not apply to the electric power generation installations
[because m]aintenance in these installations is covered adequately by
1910.269 and construction is covered adequately by general construction
requirements'' (Ex. 0163). In addition, Mr. Tom Chappell of Southern
Company agreed with OSHA that ``[a]pplying 1910.269 during the `final
phase of construction' or `reconstruction work' would be preferable to
recreating the same requirements in Subpart V'' (Ex. 0212).
On the other hand, NIOSH suggested that it ``would be less
burdensome'' for employers if the relevant requirements for
construction at generation installations were incorporated in subpart V
(Ex. 0130). In addition, MYR Group was concerned that OSHA's proposed
approach could lead to confusion, explaining:
[A]pplying part 1910 electrical standards [to construction work
involving generation installations] would cause confusion as to
whether other applicable general industry or construction standards
would govern the remaining aspects of such work. Thus, OSHA's
proposal--based on an alleged simplification--does itself create
confusion. [Ex. 0162]
OSHA considered these comments, but does not believe that applying
Sec. 1910.269 to construction involving generation installations is
likely to result in any heavy burdens or confusion. OSHA's construction
standards (29 CFR part 1926) apply to general construction activities
performed at generation installation sites. As previously explained,
Sec. 1910.269 generally will not apply to the original construction of
a generating station until the final phase of construction, when many
of the provisions in Sec. 1910.269 become applicable. For example, in
the early construction phases, the generation installation would
contain no energized circuits, so the provisions for working near
energized parts in Sec. 1910.269(l) would not apply. Similarly, in the
construction of a coal-fired generating station, the requirements in
Sec. 1910.269(v)(11) on coal handing would have no application until
coal is present. To the extent an employer is performing late-stage
construction or reconstruction of a generation installation and Sec.
1910.269 applies, the provisions of Sec. 1910.269 supplement, but do
not replace, any relevant general construction requirements. (See
Sec. Sec. 1910.269(a)(1)(iii) and 1926.950(a)(2).) For example, the
training requirements in Sec. 1910.269(a)(2) apply in addition to any
applicable training requirements in part 1926.\42\
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\42\ Paragraph (e) of Sec. 1910.269 contains requirements for
work in enclosed spaces. OSHA recently proposed a standard covering
confined spaces in construction, which will cover many of the same
hazards. OSHA will consider how to apply these new confined space
provisions to the construction of power generation installations in
the development and promulgation of that final rule.
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With this additional clarification and the support of most of the
commenters who provided feedback on this issue, the Agency is adopting
proposed Sec. 1926.950(a)(3) as it relates to the construction of
electric power generation installations.\43\
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\43\ Current Sec. 1910.269(a)(1)(ii)(A) provides that Sec.
1910.269 does not apply to construction work. In the final rule,
OSHA is revising this paragraph to indicate that Sec. 1910.269 does
not apply to construction work, as defined in Sec. 1910.12, except
for line-clearance tree-trimming operations and work involving
electric power generation installations as specified in Sec.
1926.950(a)(3). This change makes the application of Sec. 1910.269
consistent with the coverage of work involving electric power
generation installations in subpart V.
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Another coverage issue raised in the proposal relates to line-
clearance tree trimming, which is currently addressed in Sec.
1910.269.\44\ (See existing Sec. 1910.269(a)(1)(i)(E).) As OSHA
explained in the preamble to the proposal, line-clearance tree trimming
is not normally performed as part of the construction of electric power
transmission or distribution installations (70 FR 34833). One exception
occurs when trees are trimmed along an existing overhead power line to
provide clearance for a new transmission or distribution line that is
under construction (id.). While this type of work by line-clearance
tree trimmers is properly classified as construction work, it shares
many similarities with the work done by line-clearance tree trimmers
that is properly classified as general industry work.\45\ For this
reason, as well as for ease of compliance and enforcement, proposed
Sec. 1926.950(a)(3) provided that Sec. 1910.269 would apply to all
line-clearance tree-trimming operations, even those that might be
considered construction. OSHA requested comments on whether Sec.
1910.269 should apply to all work involving line-clearance tree
trimming, as proposed, or whether the relevant requirements from Sec.
1910.269 should be contained in subpart V.
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\44\ Line-clearance tree trimming is also addressed in Sec.
1910.268 when the lines involved are telecommunications lines. (See
29 CFR 1910.268(q).)
\45\ Throughout the preamble discussion of this final rule, OSHA
generally refers to line-clearance tree trimmers who are not
qualified employees under Sec. 1910.269 or subpart V as ``line-
clearance tree trimmers,'' and to qualified employees who also meet
the definition of ``line-clearance tree trimmers'' as ``qualified
employees.''
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The Agency received a handful of comments on this issue. (See, for
example, Exs. 0175, 0186, 0201, 0213, 0230.) These comments generally
supported OSHA's proposed approach. For example, Mr. Anthony Ahern of
Ohio Rural Electric Cooperatives agreed that OSHA need not duplicate
the line-clearance tree-trimming requirements from Sec. 1910.269 in
subpart V (Ex. 0186). Also, Mr. James Gartland of Duke Energy commented
that the requirements for line-clearance tree-trimming operations
should be covered exclusively under Sec. 1910.269, explaining that
line-clearance tree-trimming operations are the same whether one
considers the work to be general industry or construction (Ex. 0201).
IBEW asked OSHA to clarify whether Sec. 1910.269 would apply even
to tree-trimming operations that could be considered ``construction,''
for example clearing around existing energized facilities for a new
right of way (Ex. 0230). OSHA is applying Sec. 1910.269 in those
circumstances. Given that clarification, IBEW agreed that the Sec.
1910.269 requirements for line-clearance tree-trimming operations do
not need to be repeated in subpart V (Ex. 0230). In light of the
commenters' support, OSHA is adopting Sec. 1926.950(a)(3) as proposed
with respect to line-clearance tree trimming.\46\
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\46\ Current Sec. 1910.269(a)(1)(ii)(A) provides that Sec.
1910.269 does not apply to construction work. In the final rule,
OSHA is revising this paragraph to indicate that Sec. 1910.269 does
not apply to construction work, as defined in Sec. 1910.12, except
for line-clearance tree-trimming operations and work involving
electric power generation installations as specified in Sec.
1926.950(a)(3). This change makes the application of Sec. 1910.269
consistent with the coverage of line-clearance tree-trimming
operations in subpart V.
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Although the tree trimming industry did not object to covering all
line-clearance tree trimming in Sec. 1910.269, representatives of the
industry urged the Agency to expand the scope of covered line-clearance
tree-trimming activities by broadening the definition of that term.
(See, for example, Exs. 0174, 0200, 0502, 0503; Tr. 620-628, 765-769.)
The proposed definition of ``line-clearance tree trimming'' in Sec.
1926.968, which was based on existing Sec. 1910.269(x), read as
follows:
[[Page 20342]]
The pruning, trimming, repairing, maintaining, removing, or
clearing of trees or the cutting of brush that is within 3.05 m (10
feet) of electric supply lines and equipment.
The Utility Line Clearance Coalition (ULCC) commented that the
definition of line-clearance tree trimming should not be limited to
trees within 3.05 meters (10 feet) of an electric supply line. ULCC
requested that OSHA expand the definition of ``line-clearance tree
trimming'' to include all vegetation management work done by line-
clearance tree trimmers and trainees for the construction or
maintenance of electric supply lines or for electric utilities (Ex.
0502). The Tree Care Industry Association (TCIA) proposed the same
change to the definition of ``line-clearance tree trimming'' (Ex.
0503). Both tree trimming trade associations recommended that the
definition of ``line-clearance tree trimming'' be revised to read as
follows:
The pruning, trimming, repairing, maintaining, removing,
treating or clearing of trees or the cutting of brush (vegetation
management) that is within 10 feet (305 cm) of electric supply lines
and equipment, or vegetation management work performed by line
clearance tree trimmer/trainees for the construction or maintenance
of electric supply lines and/or for electric utilities. [Exs. 0502,
0503]
The industry provided three main arguments in support of its
recommendation to expand the scope of tree-trimming work covered by
Sec. 1910.269. For the reasons described later, OSHA is not persuaded
by the industry's arguments and will not be expanding the definition of
``line-clearance tree trimming'' to include all vegetation management
work for the construction or maintenance of electric supply lines or
for electric utilities. However, OSHA is making some changes to the
definition of ``line-clearance tree trimming'' that will broaden, in a
limited manner, the scope of tree-trimming operations covered by Sec.
1910.269. These changes are discussed later in this section of the
preamble.
The tree trimming industry's first argument in support of its
recommended definition is that the ``10-foot rule'' (as they described
it) contradicts other portions of Sec. 1910.269. Joe Tommasi of the
Davey Tree Expert Company, testifying on behalf of ULCC, noted:
[T]he minimum separation distances tables in the standard
requires [sic] a line clearance arborist to maintain more than ten
feet from some lines depending on the voltage exposures, but at the
same time, the definition says that such work is not subject to
[the] line clearance tree trimming standard because the standard
[applies] only to trees that are within the ten feet of overhead
conductors. [Tr. 622]
Mr. Tommasi also suggested that some requirements, such as those for
spraying herbicides and stump cutting, may apply to work that takes
place more than 3.05 meters away from power lines (Tr. 622-623).
OSHA does not find this argument persuasive. This first of the tree
trimmers' arguments reflects a basic misunderstanding of the way the
proposed standard worked. Under the proposed rule, tree-trimming work
was covered by Sec. 1910.269 only to the extent it was done on trees
or brush within 3.05 meters of electric supply lines and equipment. If
it was done on trees or brush more than 3.05 meters away from lines and
equipment, none of the provisions in proposed Sec. 1910.269 applied.
The proposed ``10-foot rule'' did not create any internal conflicts in
Sec. 1910.269. For work done outside of the 3.05-meter boundary, the
proposed provisions the industry was concerned about, that is, minimum
approach distances and requirements for spraying herbicides and stump
cutting, did not apply.
The tree trimmers' second justification for expanding the
definition of line-clearance tree trimming in Sec. 1910.269 is that
the ``10-foot rule'' undermines safety by causing different safety
requirements to apply to line-clearance tree trimmers depending on
their distance from the line. Mr. Tommasi testified that ``experience
teaches that a single set of safety rules applicable to the line tree
arborist achieves the highest rate of compliance and thus the highest
safety'' (Tr. 625). Mr. Tommasi maintained that Federal and State OSHA
compliance officials have enforced other standards, such as OSHA's
logging standard (29 CFR 1910.266), during arborist operations more
than 3.05 meters from power lines (id.). Further, ULCC commented that
``the foundation of worker safety in line clearance tree trimming is
adherence to a single predictable set of safety standards in which
employees can be trained and repeatedly drilled'' (Ex. 0174).
OSHA appreciates the industry's desire for a single set of safety-
related work practices, but changing the definition of ``line-clearance
tree trimming'' in Sec. 1910.269 would not necessarily achieve the
industry's goal. As stated previously, even work covered by Sec.
1910.269 and subpart V must comply with all other applicable general
industry and construction standards. In any event, the Agency does not
believe that it is necessary to employee safety to address in Sec.
1910.269 every hazard faced by line-clearance tree trimmers. Employers
in every industry, including line-clearance tree trimming firms, must
identify all OSHA standards applicable to their work, along with their
general duty clause obligations, and then set, communicate, and enforce
a set of work rules that meets all of the applicable requirements. For
example, if a line-clearance tree trimming contractor performs work
that falls under the logging or site-clearing standards (Sec. Sec.
1910.266 and 1926.604, respectively), the contractor will have to
ensure that its work rules meet those standards, in addition to Sec.
1910.269.\47\
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\47\ ULCC suggested that the references in Sec. 1910.269(r)(5)
to specific requirements in the logging standard ``shows OSHA's
intent to not apply [the] logging standard to line clearance unless
so-designated'' (Ex. 0174). This is an erroneous interpretation that
overlooks existing Sec. 1910.269(a)(1)(iii), which explains that
``[s]pecific references in this section to other sections of part
1910 are provided for emphasis only.'' Other relevant provisions in
part 1910 continue to apply, including other provisions in the
logging standard, if the work being performed falls within the scope
of those standards and within the scope of Sec. 1910.269 at the
same time.
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The provisions on brush chippers, sprayers and related equipment,
stump cutters, gasoline-engine power saws, backpack units for use in
pruning and clearing, rope, and fall protection (Sec. 1910.269(r)(2),
(r)(3), (r)(4), (r)(5), (r)(6), (r)(7), and (r)(8), respectively) in
existing Sec. 1910.269 were taken, in part, from the EEI-IBEW draft on
which Sec. 1910.269 was based. Those provisions were ``checked against
the equivalent ANSI standard, ANSI Z133.1-1982[, American National
Standard for Tree Care Operations--Pruning, Trimming, Repairing,
Maintaining, and Removing Trees, and Cutting Brush--Safety
Requirements] ([269-]Ex. 2-29), to be sure that OSHA's regulations
would better effectuate safety than the national consensus standard''
(59 FR 4322). However, OSHA did not incorporate a comprehensive tree-
trimming standard in Sec. 1910.269. Thus, many important safety
provisions included in applicable consensus standards and in other OSHA
standards were not included in Sec. 1910.269, and that section does
not address some important safety hazards faced by workers performing
tree care operations. For example, Sec. 1910.269 does not contain any
specific requirements to protect workers felling trees. Those
requirements are in OSHA's logging standard. Furthermore, even with
respect to the nonelectrical hazards that are regulated in the Sec.
1910.269 tree-trimming provisions, the OSHA standards do not cover
those hazards as comprehensively as the current version,
[[Page 20343]]
or even the 1982 version, of ANSI Z133.1.\48\ For example, the new and
old consensus standards include additional requirements for brush
chippers and provisions on hand tools such as axes, pruners, and saws
that are not contained in Sec. 1910.269. For these reasons, adopting
the industry's recommendation to have Sec. 1910.269 be the exclusive
source of requirements for tree-trimming work would not improve
employee safety. Instead, it would jeopardize the workers performing
those operations. For example, an employer may perform a logging
operation near an overhead power line under contract with an electric
utility to remove trees along the right of way for the power line.
Applying the tree care industry's recommendation and logic to this work
would place that work exclusively under Sec. 1910.269, eliminating the
protection provided by the logging standard's tree-felling provisions.
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\48\ As stated earlier, in its review of the EEI-IBEW draft,
OSHA checked provisions of that draft against equivalent provisions
in ANSI Z133.1-1982. However, because Sec. 1910.269 is a standard
for electric power generation, transmission, and distribution work
and not a comprehensive standard on tree trimming, the Agency did
not examine provisions in the ANSI standard that had no counterpart
in the EEI-IBEW draft.
---------------------------------------------------------------------------
The Agency has published an advance notice of proposed rulemaking
to gather information to use in developing a comprehensive standard on
tree care operations (73 FR 54118-54123, Sept. 18, 2008). In that
rulemaking, OSHA will consider whether, and to what extent, any new
standard on tree care operations should cover line-clearance tree
trimming.
The tree trimmers' third justification for expanding the definition
of line-clearance tree trimming in Sec. 1910.269 is that the
electrical hazards regulated by Sec. 1910.269 exist at distances
greater than 3.05 meters from the line. ULCC argued that there are many
circumstances that expose line-clearance tree trimmers to electrical
hazards at distances beyond 3.05 meters from the line, such as when a
tree or section of a tree can fall into the line even though the tree
itself is farther than 3.05 meters away (Ex. 0174). To illustrate this
point, Mr. Tommasi provided an example of a 15.2-meter tall oak tree
located 4.6 meters from an overhead power line (Tr. 623).
OSHA has considered this argument, but has concluded that the 3.05-
meter rule is generally reasonable and consistent with provisions in 29
CFR part 1910, subpart S, OSHA's general industry electrical standards.
An examination of the different requirements that apply to the
electrical hazards posed by tree-trimming operations will illuminate
the need to set a locus within which Sec. 1910.269 should apply.
The line-clearance tree-trimming provisions in existing Sec.
1910.269 contain several requirements to protect line-clearance tree
trimmers from electrical hazards. First, to be considered line-
clearance tree trimmers under Sec. 1910.269, employees must, through
training or experience, be familiar with the special techniques and
hazards involved in line-clearance tree trimming.\49\ (See existing
Sec. 1910.269(a)(1)(i)(E)(2) and the definition of ``line-clearance
tree trimmer'' in existing Sec. 1910.269(x).) Second, there must be at
least two line-clearance tree trimmers present under any of the
following conditions: (1) If a line-clearance tree trimmer is to
approach any conductor or electric apparatus energized at more than 750
volts more closely than 3.05 meters, (2) if branches or limbs being
removed are closer than the applicable minimum approach distances to
lines energized at more than 750 volts, or (3) if roping is necessary
to remove branches or limbs from such conductors or apparatus. (See
existing Sec. 1910.269(r)(1)(ii).) Third, when the voltage on the
lines is 50 volts or more and two or more employees are present,
generally at least two employees must be trained in first aid,
including cardiopulmonary resuscitation.\50\ (See existing Sec.
1910.269(b)(1).) Fourth, employees must maintain minimum approach
distances appropriate for qualified employees. (See existing Sec.
1910.269(r)(1)(iii) and (r)(1)(v).) Fifth, employees must use
insulating equipment to remove branches that are contacting exposed,
energized conductors or equipment or that are within the applicable
minimum approach distances of energized conductors or equipment. (See
existing Sec. 1910.269(r)(1)(iv).) Sixth, line-clearance tree-trimming
work may not be performed when adverse weather conditions make the work
hazardous in spite of the work practices required by Sec. 1910.269.
(See existing Sec. 1910.269(r)(1)(vi).) Seventh, mechanical equipment
must maintain appropriate minimum approach distances, and certain
measures must be taken to protect employees on the ground from hazards
that might arise from equipment contact with energized lines. (See
existing Sec. 1910.269(p)(4).)
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\49\ Throughout this preamble, OSHA differentiates between line-
clearance tree trimmers (as defined in Sec. 1910.269) and other
workers involved in tree-trimming operations. OSHA refers to
employees doing tree-related work who are not line-clearance tree
trimmers under Sec. 1910.269 as ``regular tree trimmers'' (that is,
all other tree trimmers) or ``tree workers who are not line-
clearance tree trimmers'' (that is, all other tree trimmers and
ground workers). See also the summary and explanation for Sec.
1926.950(b)(2), later in this section of the preamble.
\50\ See the summary and explanation for final Sec.
1926.951(b)(1), later in this section of the preamble, for a
discussion of the requirements for first-aid training for field
work, such as line-clearance tree-trimming operations.
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Requirements for tree trimmers who are not performing line-
clearance tree trimming (as defined in final Sec. 1910.269(x)), that
is, ``regular tree trimmers,'' are contained in Subpart S of the
general industry standards in part 1910. It is important to note that,
for the purposes of Subpart S, tree trimmers fall into two categories:
(1) Regular tree trimmers, whom OSHA treats as unqualified persons, and
(2) line-clearance tree trimmers (as defined in Sec. 1910.269), whom
OSHA considers qualified persons under subpart S. Line-clearance tree
trimmers under Sec. 1910.269 are exempt from the electrical safety-
related work practice requirements in subpart S and must comply with
the Sec. 1910.269 requirements described previously.\51\ (See Sec.
1910.331(c)(1).) In contrast, regular tree trimmers are subject to the
subpart S requirements, but are not covered by Sec. 1910.269.\52\
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\51\ Note 2 to the definition of ``line-clearance tree trimmer''
in existing Sec. 1910.269(x) explains that line-clearance tree
trimmers are considered qualified employees for purposes of the
electrical safety-related work practices in Subpart S (Sec. Sec.
1910.331 through 1910.335). Paragraph (c)(1) of Sec. 1910.331
provides that Sec. Sec. 1910.331 through 1910.335 do not apply to
work performed by qualified persons, including line-clearance tree
trimmers under Sec. 1910.269, on or directly associated with
generation, transmission, and distribution installations. In
addition, Note 3 to Sec. 1910.331(c)(1) clarifies that the agency
considers line-clearance tree trimming to be work directly
associated with such installations.
\52\ Currently, an employee must meet the definition of ``line-
clearance tree trimmer'' in existing Sec. 1910.269(x) and have
training meeting Sec. 1910.332(b)(3) to be considered a line-
clearance tree trimmer who is a qualified employee for the purposes
of subpart S. (See Note 1 to Sec. 1910.332(b)(3), which states that
a person must have the training required by that paragraph to be
considered a qualified person.) As explained in the summary and
explanation for Sec. Sec. 1926.950(b)(2) and 1910.269(a)(2)(iii),
later in this section of the preamble, OSHA added to Sec. 1910.269
appropriate training requirements for line-clearance tree trimmers.
Consequently, under this final rule, an employee must meet the
definition of ``line-clearance tree trimmer'' and have training
meeting Sec. 1910.269(a)(2)(iii) to be considered a line-clearance
tree trimmer who is a qualified employee for the purposes of subpart
S. Under both the existing standards and the final rule, any given
tree trimmer is either a line-clearance tree trimmer, who is
considered a qualified employee under subpart S, or a regular tree
trimmer, who is considered an unqualified employee under subpart S.
---------------------------------------------------------------------------
Subpart S sets some basic requirements for regular tree trimmers.
[[Page 20344]]
(Other requirements also apply, but are not germane to this
discussion.) First, regular tree trimmers must be appropriately trained
(see Sec. 1910.332(b)(1) and (b)(2)), although the training required
for regular tree trimmers is not as extensive as that required for
line-clearance tree trimmers. Second, regular tree trimmers must
generally maintain a minimum separation of 3.05 meters from overhead
power lines (see Sec. 1910.333(c)(3)(i) and (c)(3)(iii)). Finally,
regular tree trimmers working on the ground may not contact vehicles or
mechanical equipment capable of having parts of its structure elevated
near energized overhead lines, except under certain conditions (see
Sec. 1910.333(c)(3)(iii)(B)).
As a general matter, OSHA believes that workers performing line-
clearance tree-trimming operations under existing Sec. 1910.269 are
afforded more protection than workers performing regular tree-trimming
operations under Subpart S. Under existing Sec. 1910.269, line-
clearance tree-trimming operations generally require the presence of at
least two line-clearance tree trimmers trained in first aid, including
cardiopulmonary resuscitation. Subpart S does not have a comparable
requirement. Existing Sec. 1910.269 forbids line-clearance tree-
trimming operations from being performed when adverse weather
conditions make work unsafe. Subpart S does not address weather
conditions. Furthermore, in comparison with subpart S, existing Sec.
1910.269 contains additional requirements to protect workers in case
mechanical equipment contacts a power line. OSHA believes that these
important protections in existing Sec. 1910.269 must be required only
when tree-trimming operations expose employees to the most serious
electrical hazards, not any time electrical hazards are present, as
posited by ULCC.
OSHA believes that the seriousness of electrical hazards posed by
tree trimming depends on how close the tree is to the power line. The
closer the tree is to the power line, the more difficulty the worker
has in maintaining minimum approach distances. For example, roping may
be necessary to maintain the required minimum approach distances. (This
practice is addressed in existing Sec. 1910.269(r)(1)(ii)(C).)
Furthermore, when the tree is close to the power line, a worker
trimming trees from an aerial lift has to be more concerned with the
distances between the power line and the tree, the aerial lift, and
himself or herself. The farther the tree is from the power line, the
more room an employee has in which to maneuver the aerial lift.
Therefore, the Agency has only to decide how close the tree needs
to be to a power line before the protections required by Sec. 1910.269
are necessary. The Agency concludes that those protections should start
when the tree is 3.05 meters from a power line. Under Subpart S,
unqualified employees are not permitted within that distance, but they
are permitted to work in compliance with subpart S outside of that
distance (plus 100 millimeters (4 inches) of additional distance for
every 10 kilovolts over 50 kilovolts). (See Sec. 1910.333(c)(3)(i).)
OSHA believes that it would be inconsistent to expand the definition of
``line-clearance tree trimming'' to the point that line-clearance tree
trimmers working on trees or brush more than 3.05 meters from the lines
would be entitled to the enhanced protections of Sec. 1910.269, while
employees doing other types of work closer to the lines (between 3.05
meters from the line and where the line-clearance tree trimmers are
working) would be governed by the more limited protections afforded by
subpart S. The Agency generally believes that any electrical hazards
that are present when a tree is more than 3.05 meters from power lines
are addressed adequately by subpart S.
Nevertheless, changes to the existing definition of ``line-
clearance tree trimming'' in Sec. 1910.269 (which is identical to the
definition proposed for subpart V) are necessary to ensure consistency
with the 3.05-meter rule that applies to unqualified employees under
Sec. 1910.331(c)(3)(i). As noted previously, under Sec.
1910.333(c)(3)(i)(A)(1), 3.05 meters is the minimum distance an
unqualified employee must maintain from overhead power lines. If the
voltage is higher than 50 kilovolts, the required distance under Sec.
1910.333(c)(3)(i)(A)(2) increases by 100 millimeters for every 10
kilovolts of voltage above 50 kilovolts. OSHA believes that this
increase in distance reasonably captures the relationship between the
severity of the electrical hazard and voltage. Therefore, OSHA decided
that, although it is not expanding the definition of ``line-clearance
tree trimming'' to the extent recommended by the tree trimming
industry, it will add this extra distance to the definition of ``line-
clearance tree trimming'' to accord with Sec. 1910.333(c)(3)(i)(A).
The revised definition appears in Sec. Sec. 1910.269(x) and 1926.968.
Paragraph (b) of final Sec. 1926.950 addresses training for
employees. Subpart V currently contains no general provisions related
to training employees in the safety practices necessary to perform
electric power transmission and distribution work. It is widely
recognized that the types of work covered by this standard require
special knowledge and skills. Additionally, final subpart V contains
many safety-related work practice requirements that are necessary for
the protection of employees. To gain the requisite knowledge and skills
to use these work practices, employees must be adequately trained.
Therefore, in the proposed revision of subpart V, OSHA included
training requirements mirroring those already in Sec. 1910.269, with a
few changes and additions (discussed later). OSHA notes that editorial
changes are being made throughout paragraph (b) to clarify that
employers must ensure that ``each'' employee covered by a specific
training provision receives the training required by that
provision.\53\
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\53\ Several provisions in the proposed rule and existing Sec.
1910.269 require employers to provide personal protective equipment
(PPE) and training for ``employees'' or for ``all employees.'' The
final rule amends these provisions to require PPE and training for
``each employee.'' These editorial, nonsubstantive changes emphasize
that the standards' training and PPE requirements impose a
compliance duty to each and every employee covered by the standards
and that noncompliance may expose the employer to liability on a
per-employee basis. This action is in accord both with OSHA's
longstanding position and OSHA standards addressing employers'
duties. (See Sec. Sec. 1910.9 and 1926.20(f); see also 73 FR 75568
(Dec. 12, 2008)). It should be noted that, if any provision in the
final rule continues to require training or PPE for ``employees'' or
for ``all employees,'' rather than for ``each employee,'' as
described above, this was an unintentional omission on OSHA's part
and should not be interpreted as amending OSHA's longstanding
position, or the general standards, addressing employers' duties to
provide training and PPE to each employee.
---------------------------------------------------------------------------
Paragraph (b)(1) contains training requirements applying to all
employees performing work covered by subpart V. Siemens Power
Generation and ORC Worldwide suggested deleting the heading ``All
employees'' from proposed paragraph (b)(1). They expressed concern that
the provision could be construed to require training for clerical
employees or other workers doing tasks not covered by subpart V (Exs.
0163, 0208, 0235). Siemens commented:
By adding the word ``ALL'' the Agency is implying that training
must be conducted for any and all employees regardless of their
scope of task. It implies for example, that even for clerical
employees that have no risk, there must be some documented training
conducted to comply with this requirement. [Ex. 0163]
OSHA appreciates these concerns, but has elected to retain the
title in paragraph (b)(1) as proposed. The Agency thinks that it is
important to distinguish the training requirements in
[[Page 20345]]
paragraph (b)(1), which is broadly applicable to workers doing work
covered by subpart V, from the requirements in paragraph (b)(2), which
is applicable only to ``qualified employees.'' OSHA clarified in the
proposal, and is reiterating here, that paragraph (b)(1) does not
impose training requirements on employees who are not performing work
covered by subpart V. The text of paragraph (b)(1) is self-limiting--
employers need only ensure that each employee receives safety training
that ``pertain[s] to his or her job assignments'' and that is ``related
to his or her work.''
As clerical workers do not perform the types of hazardous work
covered by subpart V, this provision does not require employers to
train such employees in live-line barehand or other work techniques
addressed by this final rule. Employees performing clerical work or
other work not covered by subpart V would not need to receive the same
electrical safety training required for workers involved in the
construction of transmission and distribution lines and equipment.
However, employers must train clerical workers performing work covered
by subpart V in the hazards to which they might be exposed.
Proposed paragraphs (b)(1)(i) and (b)(1)(ii) were borrowed in large
part from provisions in existing Sec. 1910.269. Paragraph (b)(1)(i)
requires each employee to be trained in, and be familiar with, the
safety-related work practices, safety procedures, and other safety
requirements in subpart V that pertain to his or her job assignments.
OSHA considers this training necessary to ensure that employees use the
safety-related work practices outlined in subpart V. It should be noted
that this provision requires employers to train employees not only in
the content of the applicable requirements of the final rule but in how
to comply with those requirements. OSHA received no comments on
proposed paragraph (b)(1)(i) and is carrying it forward into the final
rule without substantive change.
Proposed paragraph (b)(1)(ii) additionally provided that employees
had to be trained in, and be familiar with, any other safety practices
related to their work and necessary for their safety, including
applicable emergency procedures, such as pole-top and manhole rescue.
Proposed paragraph (b)(1)(ii) required that safety training be provided
in areas that are not directly addressed by subpart V, but that are
related to the employee's job. This training fills in the gaps left
when the final rule does not specify requirements for every hazard the
employee may encounter in performing electric power generation,
transmission, or distribution work. OSHA explained in the preamble to
the proposal that if more than one set of work practices could be used
to accomplish a task safely, the employee would only need to be trained
in the work methods to be used (70 FR 34833). For example, an insulator
on a power line could be replaced by an employee using live-line tools
or rubber insulating equipment or by an employee working without
electrical protective equipment after deenergizing and grounding the
line. The employee would only need to be trained in the method actually
used to replace that insulator.
The Agency received numerous comments suggesting that the training
requirement proposed in paragraph (b)(1)(ii) was too broad (Exs. 0156,
0160, 0168, 0170, 0202, 0206, 0207, 0229, 0233, 0237). Mr. Don Adkins
of Davis H. Elliot Company, an electrical contractor, commented, for
example, that this proposed provision was ``impermissibly broad'' and
offered ``no guidance as to what safety practices are `related' to the
work of those covered by the standard'' (Ex. 0156). Mr. Robert Matuga
of the National Association of Home Builders (NAHB) believed that
paragraph (b)(1)(ii) was ``overly broad,'' potentially ``creating an
obligation for employers to provide training to workers . . . on almost
every hazard that could conceivably be encountered on a construction
jobsite'' (Ex. 0168). He also argued that proposed paragraph (b)(1)(ii)
is duplicative of Sec. 1926.21(b)(2), which requires ``[t]he employer
[to] instruct each employee in the recognition and avoidance of unsafe
conditions and the regulations applicable to his work environment to
control or eliminate any hazards or other exposure to illness or
injury'' (id.). Also, the U.S. Small Business Administration's (SBA)
Office of Advocacy commented:
The scope of this mandatory employee training is not limited to
work practices required by the proposed electrical standards, but
extends to any other safety practices that are related to their work
and necessary for their safety. The SBREFA panel was concerned that
this language was overly broad and could be viewed as covering
other, non-specified hazards on the worksite, such as ergonomic
injuries from overhead work.
* * * * *
The proposed training language remains vague and OSHA should
clarify what training is necessary to comply with the standard (as
well as what alternative training is acceptable for compliance) [Ex.
0207]
Despite these comments, OSHA continues to believe that the
requirement in proposed paragraph (b)(1)(ii) is essential to the safety
and welfare of employees and is adopting it without significant change
in this final rule. Mr. Brian Erga of Electrical Safety Consultants
International (ESCI) supported the proposed training requirements and
attributed an increase in employee proficiency, and safer work
environments, to the adoption of these provisions in existing Sec.
1910.269. He explained:
It has been shown time and time again that high quality training
and retraining not only provides a safer work site, but returns
dividends in financial contributions and long term productivity to
the employer. The proposed [1926.]950(b) and associated verbiage in
the preamble, if followed, will, in our opinion, move the industry
to a safer work site. The current training requirements in 1910.269
and [the] proposed training requirements are not unduly burdensome,
and will provide a more educated and experienced work force. [Ex.
0155]
Further, Mr. Donald Hartley with IBEW testified at the 2006 public
hearing that ``ensur[ing] that . . . employees are trained in the
safety-related work practices, procedures, and requirements that
pertain to their . . . assignments . . . is necessary to ensure that
employees are equipped to deal with potential hazards associated with
this dangerous work'' (Tr. 876). He did not suggest that this training
be limited only to the safety practices and other safety requirements
in subpart V. Several rulemaking participants recognized that subpart V
does not specifically address all hazards faced by employees performing
covered work and suggested that training is an important factor in
employee safety. For example, Mr. Lee Marchessault testified about the
importance of training in substation rescue procedures, stating, ``You
should do rescue training from substation structures'' (Tr. 572). Also,
Energy United EMC commented that ``proper training is necessary'' to
prevent employees in insulated aerial lifts from touching conductors
(Ex. 0219). The record also indicates that employers train employees to
protect them from heat-stress hazards (see, for example, Tr. 1129-
1130), to ensure proper maintenance of protective clothing (see, for
example, Tr. 471), and to supplement the line-clearance tree-trimming
requirements in existing Sec. 1910.269 (see, for example, Tr. 683).
Existing Sec. 1910.269(a)(2)(i) already contains a requirement
identical to the one proposed in Sec. 1926.950(b)(1)(ii), and OSHA has
successful enforcement experience with this provision. First, except
for two questions addressing who needs to be trained in emergency and
rescue procedures, the Agency has
[[Page 20346]]
not received any letters requesting interpretation or clarification of
this provision, leading the Agency to believe that the requirement is
not as ambiguous as the commenters claim. Second, OSHA has issued only
a few citations under existing Sec. 1910.269(a)(2)(i) (for example, in
2008, OSHA issued only 2 citations of Sec. 1910.269(a)(2)(i) in 362
inspections of electric utilities), which supports OSHA's conclusion
that employees performing work under existing Sec. 1910.269 are
generally being trained as required. Third, even EEI admits that ``EEI
members have generally found the training requirements of paragraph
1910.269(a)(2) to be workable for their employees'' (Ex. 0227). Thus,
it appears that electric utilities have not had difficulty complying
with the identical requirement in existing Sec. 1910.269(a)(2)(i).
On the other hand, the Agency agrees with these commenters that
Sec. 1926.950(b)(1)(ii) of the final rule sets a broad, general
requirement to train employees. This is not an uncommon approach for an
OSHA standard to take. OSHA's personal protective equipment (PPE)
standards in Sec. Sec. 1910.132(a) and 1926.95(a) require the employer
to provide and ensure the use of protective equipment wherever it is
necessary by reason of hazards of processes or environment, chemical
hazards, radiological hazards, or mechanical irritants encountered in a
manner capable of causing injury or impairment in the function of any
part of the body through absorption, inhalation or physical contact. An
employer is deemed to be in violation of the PPE standards when it
fails to provide PPE despite having actual or constructive knowledge of
a hazard in its facility for which protective equipment is necessary.
(See, for example, Cape & Vineyard Div. of the New Bedford Gas & Edison
Light Co. v. OSHRC, 512 F.2d 1148, 1152 (1st Cir.1975).) The general
construction training requirement contained in Sec. 1926.21(b)(2) is
similarly broad, requiring employers to instruct each employee in the
recognition and avoidance of unsafe conditions and the regulations
applicable to his or her work environment to control or eliminate any
hazards or other exposure to illness or injury. That standard has been
interpreted to require employers to provide employees with ``the
instructions that a reasonably prudent employer would have given in the
same circumstances.'' (El Paso Crane & Rigging Co., Inc., 16 BNA OSHC
1419 (No. 90-1106, Sept. 30, 1993); see also Pressure Concrete Constr.
Co., 15 BNA OSHC 2011 (No. 90-2668, Dec. 7, 1992) (``Because section
1926.21(b)(2) does not specify exactly what instruction the employees
must be given, the Commission and the courts have held that an employer
must instruct its employees in the recognition and avoidance of those
hazards of which a reasonably prudent employer would have been
aware.'').) The applicability of Sec. 1926.21(b)(2) turns on an
employer's actual or constructive knowledge of hazards, just as under
the general PPE requirements. (See, for example, W.G. Fairfield Co. v.
OSHRC, 285 F. 3d 499 (6th Cir. 2002).)
OSHA is applying final paragraph (b)(1)(ii) in the same manner.
Therefore, if an employer has actual knowledge of a hazard (for
example, through safety warnings from equipment manufacturers or
through injury experience), or if the employer has constructive
knowledge of a hazard (for example, when industry practice recognizes
particular hazards), then each employee exposed to the hazard must be
trained. For the training to comply with this provision, it must be
sufficient to enable the employee to recognize the hazard and take
reasonable measures to avoid or adequately control it.
In addition, OSHA agrees with Mr. Matuga that, except to the extent
that it only covers Subpart V work, paragraph (b)(1)(ii) requires the
same training as Sec. 1926.21(b)(2). Consequently, employers who meet
Sec. 1926.21(b)(2) also meet final Sec. 1926.950(b)(1)(ii). Even
though the final rule duplicates the general construction training
provision, the Agency is adopting paragraph (b)(1)(ii) to maintain
consistency with existing Sec. 1910.269.
Mr. Lee Marchessault with Workplace Safety Solutions recommended
that paragraph (b)(1)(ii) refer to rescues at heights generally, rather
than just pole-top rescue, in the parenthetical listing examples of
potentially applicable emergency procedures (Tr. 572). He noted that
rescue procedures are performed from wind turbines, towers, and
substation structures, as well as utility poles (id.).
OSHA has decided not to adopt this recommendation because no change
is necessary. The types of emergency procedures listed in paragraph
(b)(1)(ii) in the final rule are examples only. Pole-top rescue is
listed because it is a widely recognized and used emergency procedure.
The Agency notes, however, that training in these other types of
emergency procedures is required if it is necessary for employee safety
during the work in question.
OSHA proposed to add a new provision to both subpart V and Sec.
1910.269 clarifying that the degree of training required is based on
the risk to the employee for the task involved. OSHA explained that,
under this proposed paragraph, the training provided to an employee
would need to be commensurate with the risk he or she faces (70 FR
34834). The two provisions, proposed Sec. Sec. 1910.269(a)(2)(i)(C)
and 1926.950(b)(1)(iii), were based on Sec. 1910.332(c), although
Sec. 1910.332(c) does not contain the ``for the task involved''
language. The purpose of these new training paragraphs was to ensure
that an appropriate level of training is provided to employees.
Employees who face little risk in their job tasks need less training
than those whose jobs expose them to more danger. OSHA believed that
this provision would ensure that employers direct their training
resources where they will provide the greatest benefit, while still
making sure that all employees receive adequate training to protect
them against the hazards they face in their jobs (id.). OSHA noted in
the preamble to the proposal that training already provided in
compliance with existing Sec. 1910.269 would be considered sufficient
for compliance with these paragraphs (id.). The provisions would not
require employers to make changes to existing training programs that
comply with Sec. 1910.269; rather, they would provide employers with
options to tailor their training programs and resources to employees
with particularly high-risk jobs (id.).
OSHA received several comments regarding paragraph (b)(1)(iii) of
proposed Sec. 1926.950. (See, for example, Exs. 0128, 0162, 0163,
0169, 0177, 0201, 0209, 0210, 0212, 0221, 0225, 0227, 0235; Tr. 873-
874, 1316-1319, 1332-1333.)\54\ Some commenters maintained that this
provision was unnecessary or too vague. For example, Mr. Pat McAlister
of Henry County REMC requested additional guidance to ``clarify
generally when and how risks link with training and [how to assign] the
appropriate level of training to offset those risks'' (Ex. 0210). EEI
commented that this proposed training provision was unnecessary,
explaining:
---------------------------------------------------------------------------
\54\ The remaining discussion of these provisions refers to the
proposed construction requirement. However, the comments and OSHA's
resolution of those comments applies equally to the corresponding
general industry provision as is generally the case throughout this
preamble.
We question the soundness of changing the [current] requirements
[in Sec. 1910.269] because if compliance with existing Section
1910.269 training requirements is sufficient, there is no reason to
add another regulatory
[[Page 20347]]
requirement, and the proposed provisions demonstrably have no
purpose. The stated explanation is that the standard is intended to
``provide employers with options,'' but employers have those options
without the added regulation. No additional provisions are necessary
---------------------------------------------------------------------------
to preserve existing options. [Ex. 0227]
EEI went on to suggest that the added requirement would create
confusion, commenting:
EEI's concern is that the new language will likely create
confusion among many employers who do not have access to or
regularly consult the preambles to OSHA standards. All but the most
sophisticated readers likely will assume that the revised standard
imposes a requirement to modify existing training programs.
Moreover, the proposal is unclear: The meaning of the term ``degree
of training'' is difficult to discern in that it is not evident how
OSHA would classify and evaluate a ``degree'' of training. [Id.]
Many of the comments received on proposed paragraph (b)(1)(iii)
expressed concern only about the language tying training to ``the task
involved.'' For example, Mr. Mark Spence with Dow Industries generally
supported the proposed provision, but stated that the similar
requirement in Sec. 1910.332(c), which does not contain the ``for the
task involved'' language, ``has been in effect since 1990 without
causing significant problems for employers'' (Ex. 0128). Mr. Spence had
concerns about the additional language in proposed paragraph
(b)(1)(iii), explaining:
[T]he proposal refers to training ``for the task involved''.
Training programs typically are broad, rather than task-specific.
[T]he present wording could be interpreted to indicate an
unmanageable requirement to train affected employees on the details
of each individual task. OSHA should consider re-wording this
provision or clarifying that it means that, where necessary,
additional training may be required for a particular task . . .
[Id.]
Mr. Tom Chappell of Southern Company similarly noted that ``[d]ue
to the large number of different tasks that an employee may need to
perform, it would be difficult to evaluate each task and identify the
level of training that would be required'' (Ex. 0212). Consumers Energy
commented that, in its experience, ``employees can safely complete
hundreds of specific tasks'' without the need for training in each task
individually (Ex. 0177). Mr. Donald Hartley of IBEW testified that the
requirement ``to tie the degree of training to the risk to the employee
for the task involved . . . is both an unworkable and inappropriate
standard'' (Tr. 873-874). Mr. William Mattiford with Henkels & McCoy
testified:
[I]t's not very clear as to what by definition, the degree of
training shall be determined by the risk to the employee for the
task involved. And that's where we see it's very confusing.
And if it's literally taken that way, then it's each individual
task. So it's not just setting a pole, but it's digging a hole, to
set the pole, to prefab the pole. Each one of those things could be,
I guess, understood as being training for each one of those tasks.
And I feel as though, many of us feel as though that by the
design of the training programs today that have redundancy and
overlapping in them, you do cover all of those.
But to actually spell out perhaps a lesson plan for each one of
those tasks I think would be just too difficult to do, if not
impossible. [Tr. 1339]
Mr. Wilson Yancey with Quanta Services agreed with these comments:
I agree with Bill's comments, too. I think most of that is being
covered today. If we have to go down and copy it and put lesson
plans for everything, we will never get it accomplished and it will
be too costly to the contractor. [Tr. 1340]
OSHA continues to believe that it is important that the level of
training provided to employees be commensurate with the risk they
encounter. Focusing training where the risk is greatest maximizes the
benefits to be achieved. In addition, providing no more training than
is necessary for hazards that pose less risk can conserve valuable, and
often limited, safety and health resources. OSHA successfully used this
general approach in Sec. 1910.332(c), allowing employers flexibility
in providing training to employees, yet ensuring that employees most at
risk receive the most training. This approach is recognized by the
Agency's publication ``Training Requirements in OSHA Standards and
Training Guidelines.'' \55\
---------------------------------------------------------------------------
\55\ This document can be obtained by contacting OSHA's Office
of Publications as directed in the ADDRESSES section of this
preamble or from OSHA's Web page: http://www.osha.gov/pls/publications/publication.html. See, in particular, Section III of
the voluntary guidelines, ``Matching Training to Employees,'' on pp.
6-8.
---------------------------------------------------------------------------
On the other hand, the Agency understands the rulemaking
participants' concerns. Most commenters objected to providing a level
of training determined by ``the task involved.'' Although employees are
trained to perform the various tasks involved in their jobs, as noted
by Mr. Mattiford (Tr. 1339), examining each task to determine the
relative risk may seem daunting and unworkable as claimed by Mr.
Hartley (Tr. 873-874). Employers should, however, be capable of
determining the relative risk of the various hazards encountered by
their employees. To clarify this requirement, OSHA replaced the phrase
``for the task involved'' from the proposal with the phrase ``for the
hazard involved'' in paragraph (b)(1)(iii) of the final rule.
To determine the relative risk encountered by employees, employers
are encouraged to follow the guidelines in OSHA's publication
``Training Requirements in OSHA Standards and Training Guidelines,''
Voluntary Training Guidelines, Section III. In any event, employers may
allocate training resources in accordance with their own determination
of relative risk, provided that each affected employee receives the
minimum training required under subpart V.
Paragraph (b)(2) contains additional requirements for training
qualified employees. Because qualified employees may work extremely
close to electric power lines and equipment and, therefore, encounter a
high risk of electrocution, it is important that they be specially
trained. Towards this end, the standard requires that these employees
be trained in: distinguishing exposed live parts from other parts of
electric equipment; determining nominal voltages of exposed live parts;
applicable minimum approach distances and how to maintain them; the
techniques, protective equipment, insulating and shielding materials,
and tools for working on or near exposed live parts; and the knowledge
necessary to recognize electrical hazards and the techniques to control
or avoid these hazards. The language in paragraph (b)(2) generally
mirrors language in existing Sec. 1910.269(a)(2)(ii). However,
paragraph (b)(2)(v), which requires training in how to recognize and
control or avoid electrical hazards, has no counterpart in existing
Sec. 1910.269. In addition, OSHA has added language to paragraph
(b)(2)(iii) of the final rule explicitly requiring employers to train
qualified employees in the skills and techniques necessary to maintain
minimum approach distances. See the summary and explanation of final
Sec. 1926.960(c)(1), later in this section of the preamble, for an
explanation of this change.
NIOSH commented that qualified and unqualified employees are
exposed to the same electrical hazards and should receive the same
training (Ex. 0130). NIOSH suggested that ``[a]ll workers potentially
exposed to electrocution hazards should be trained in hazard awareness
and the identification and control of these hazards, as qualified
employees are trained'' (id.). NIOSH specifically noted that line-
clearance tree trimmers and ground workers face
[[Page 20348]]
electrical hazards comparable to those of qualified employees (id.).
OSHA does not believe that is appropriate to adopt requirements in
this final rule for the training of ground workers on tree crews or
other tree workers who are neither qualified employees under Sec.
1910.269 nor line-clearance tree trimmers. Subpart S, not Sec.
1910.269 or subpart V, applies to electrical safety-related work
practices of ground workers on tree crews and other tree workers who
are not line-clearance tree trimmers. (See Sec. 1910.331(b).) The
preamble to the 1994 Sec. 1910.269 final rule makes this clear as
follows:
Other tree workers do not have the training necessary for them
to be either ``qualified employees'' or ``line-clearance tree
trimmers'', as defined under Sec. 1910.269(x). These employees are
not covered under Sec. 1910.269 at all. The work practices these
employees must use are contained in Subpart S of Part 1910. Under
Subpart S, tree workers must maintain a 10-foot minimum approach
distance from overhead lines. (In fact, trimming any branch that is
within 10 feet of an overhead power line is prohibited by Subpart
S.) [59 FR 4410; footnotes omitted.]
Existing Sec. 1910.269(a)(1)(ii)(B) states that Sec. 1910.269 does
not cover ``electrical safety-related work practices . . . covered by
subpart S.'' Consequently, addressing the training of ground workers on
tree crews or other tree workers who are neither qualified employees
nor line-clearance tree trimmers in Sec. 1910.269 or subpart V would
be inappropriate.
On the other hand, OSHA believes that the final rule should address
the training of line-clearance tree trimmers. However, not all of the
training requirements in final Sec. 1910.269(a)(2)(ii), which are
applicable to qualified employees, are appropriate for line-clearance
tree trimmers. Qualified employees are trained to work on energized
parts. Specifically, the final rule requires qualified employees to be
trained in, among other topics, the proper use of the special
precautionary techniques, personal protective equipment, insulating and
shielding materials, and insulated tools for working on or near exposed
energized parts of electric equipment (Sec. 1926.950(b)(2)(iv)). This
training enables qualified employees to work directly on energized
parts of electric circuits, which line-clearance tree trimmers do not
do.
Line-clearance tree trimmers work close to, but not on, energized,
overhead power lines. (See, for example, Ex. 0502; Tr. 611.)
Consequently, the Agency believes that these employees have different
training needs than qualified employees covered by Sec. 1910.269.
Under existing Sec. 1910.269, OSHA has addressed the training for
line-clearance tree trimmers in the definition of ``line-clearance tree
trimmer'' and in the notes to that definition. The definition and notes
appear in existing Sec. 1910.269(x). Note 2 to that definition
explains that while line clearance tree trimmers are not considered
qualified employees for purposes of Sec. 1910.269, they are considered
to be qualified employees exempt from the electrical safety-related
work practice requirements in subpart S (Sec. Sec. 1910.331 through
1910.335). The note following Sec. 1910.332(b)(3) indicates that, for
the purposes of Sec. Sec. 1910.331 through 1910.335, a person must
have the training required by Sec. 1910.332(b)(3) for OSHA to consider
that person a qualified person. Therefore, to be considered a line-
clearance tree trimmer under Sec. 1910.269 and, thus, a qualified
person under subpart S, a tree trimmer needs the training specified by
Sec. 1910.332(b)(3). Any tree trimmer who has not had such training is
considered an unqualified person under subpart S, and the electrical
safety-related work practices in that standard apply instead of those
in Sec. 1910.269 as explained previously.
The training required by Sec. 1910.332(b)(3) is virtually
identical to the training required by final Sec. 1910.269(a)(2)(ii)(A)
through (a)(2)(ii)(C) for qualified employees, except that Sec.
1910.332(b)(3)(iii) requires training in the clearance (that is,
minimum approach) distances specified in Sec. 1910.333(c), whereas
Sec. 1910.269(a)(2)(ii)(C) requires training in the minimum approach
distances in Sec. 1910.269 and in the skills and techniques necessary
to maintain those distances. Considering NIOSH's recommendation, OSHA
believes that putting appropriate training requirements for line-
clearance tree trimmers directly in Sec. 1910.269 rather than applying
them indirectly through definitions and scope statements will make the
standards more transparent and make the obligation to train these
workers clearer. Consequently, the Agency is adopting a new Sec.
1910.269(a)(2)(iii) requiring line-clearance tree trimmers to be
trained in: (1) The skills and techniques necessary to distinguish
exposed live parts from other parts of electric equipment (final Sec.
1910.269(a)(2)(iii)(A)), (2) the skills and techniques necessary to
determine the nominal voltage of exposed live parts (final Sec.
1910.269(a)(2)(iii)(B)), and (3) the minimum approach distances in the
final rule corresponding to the voltages to which the line-clearance
tree trimmer will be exposed and the skills and techniques necessary to
maintain those distances (final Sec. 1910.269(a)(2)(iii)(C)).\56\ The
first two training requirements, final Sec. 1910.269(a)(2)(iii)(A) and
(a)(2)(iii)(B), are identical to Sec. 1910.332(b)(3)(i) and
(b)(3)(ii). The remaining requirement, final Sec.
1910.269(a)(2)(iii)(C), is comparable to Sec. 1910.332(b)(3)(iii),
except that line-clearance tree trimmers need to be trained in the
minimum approach distances required under Sec. 1910.269 rather than
those in subpart S and need to be trained in the skills and techniques
necessary to maintain those distances. OSHA concludes that the minimum
approach distances required under Sec. 1910.269 are the more
appropriate reference for final Sec. 1910.269(a)(2)(iii)(C) because
line-clearance tree trimmers are required to comply with the minimum
approach distances in Sec. 1910.269.\57\ The Agency also concludes
that line-clearance tree trimmers need to be trained in the skills and
techniques necessary to maintain the required minimum approach
distances for the same reasons that qualified employees must be trained
in these subjects. (See the discussion of minimum approach distances
under the summary and explanation for final Sec. 1926.960(c)(1), later
in this section of the preamble.) OSHA believes that training in these
skills and techniques are even more important for line-clearance tree
trimmers, who, unlike qualified employees, generally work without
electrical protective equipment (see, for example, Ex. 0503).
---------------------------------------------------------------------------
\56\ Line-clearance tree trimming firms may need to train their
employees in the more protective of the minimum approach distances
in subpart S and Sec. 1910.269 to ensure compliance both during
work that is covered by subpart S and work that is covered by Sec.
1910.269.
\57\ Even though line-clearance tree trimmers are not generally
qualified employees under Sec. 1910.269, paragraph (r)(1)(iii) of
final Sec. 1910.269 requires them to maintain the minimum approach
distances specified in Table R-5, Table R-6, Table R-7, and Table R-
8.
---------------------------------------------------------------------------
Paragraph (b)(2)(v), which is being adopted without change from the
proposal, requires qualified employees to be trained in the recognition
of electrical hazards to which the employee may be exposed and the
skills and techniques necessary to control or avoid those hazards.
Commenting on proposed Sec. 1910.269(a)(2)(ii)(E), which is the
general industry counterpart to proposed Sec. 1926.950(b)(2)(v), Mr.
Kevin Taylor of Lyondell Chemical Company requested clarification of
the training required for workers who operate, but do not maintain,
480-volt circuit breakers (Ex. 0218). Workers operating these circuit
breakers need not be
[[Page 20349]]
qualified employees unless the devices are in areas restricted to
qualified employees (final Sec. Sec. 1910.269(u)(4) and (v)(4) and
1926.966(e)) or otherwise expose the employees to contact with live
parts (final Sec. 1910.269(l)(1) and 1926.960(b)(1)). Thus, assuming
that these workers are not qualified employees, they would need to be
trained only as required by final Sec. Sec. 1910.269(a)(2)(i) and
1926.950(b)(1). The scope of this training is described earlier in this
section of the preamble under the discussion of final Sec.
1926.950(b)(1).
OSHA proposed to supplement the training requirements in paragraphs
(b)(1) and (b)(2) with requirements for supervision and additional
training in paragraphs (b)(3) and (b)(4). These requirements were taken
directly from existing Sec. 1910.269(a)(2)(iii) and (a)(2)(iv). The
Agency explained in the proposal that initial instruction in safe
techniques is not sufficient to ensure that employees will use safe
work practices all of the time (70 FR 34834). Continual reinforcement
of this initial training must be provided to ensure that the worker
uses the procedures he or she has been taught. This reinforcement can
take the form of supervision, safety meetings, prejob briefings or
conferences, and retraining.
Paragraph (b)(3), which is being adopted without change from the
proposal, requires the employer to determine, through regular
supervision (that is, supervision that takes place on a periodic basis
throughout the year) and inspections conducted at least annually, that
each employees is complying with the safety-related work practices
required by subpart V. Paragraph (b)(4), also being adopted without
change from the proposal, requires additional training (or retraining)
whenever:
Regular supervision or an annual inspection required by
paragraph (b)(3) indicates that the employee is not following the
safety-related work practices required by subpart V,
New technology, new types of equipment, or changes in
procedures necessitate the use of safety-related work practices that
are different from practices that the employee would normally use, or
The employee must use safety-related work practices that
are not normally used during his or her regular job duties.
A note to paragraph (b)(4)(iii) explains that retraining must be
provided before an employee performs a task that is done less
frequently than once a year. Instruction provided in prejob briefings
is acceptable if it is detailed enough to fully inform the employee of
the procedures involved in the job and to ensure that he or she can
accomplish them in a safe manner.
Mr. Leo Muckerheide of Safety Consulting Services commented that
the requirements for retraining in proposed paragraph (b)(4) were
reactive rather than proactive (Ex. 0180). He recommended that the
standard require 4 to 8 hours of retraining every 2 to 3 years, arguing
that workers follow proper safety practices immediately after training,
but drift away from those practices as time goes on.
OSHA does not agree that the retraining requirements in paragraph
(b) are exclusively reactive. Employees performing work covered by the
final rule typically employ the safety-related work practices required
by the standard on a daily or other regular basis. The Agency believes
that workers generally will continue to follow these practices over
time and has no evidence that a lack of regularly scheduled retraining
contributes to a failure to follow safe work practices that are used
frequently. OSHA does recognize, however, that retraining is important
for work practices that are employed infrequently. Thus, paragraphs
(b)(4)(ii) and (b)(4)(iii) require employees to receive additional
training if they need to use new or different safety-related work
practices or safety-related work practices that are not part of their
regular job duties. For example, under paragraph (b)(4)(iii), an
employee who is expected to administer CPR in the event of an emergency
needs retraining if he or she has not used those emergency practices
over the course of the previous year. Retraining would also be required
for an employee who needs to climb a pole if it has been more than a
year since he or she has used pole-climbing practices.\58\ OSHA does
not believe that any changes to paragraph (b)(4) are necessary and is
adopting that paragraph without change from the proposal.
---------------------------------------------------------------------------
\58\ OSHA interprets the phrase ``must employ'' in paragraph
(b)(4)(iii) to include both practices the employer specifically
assigns to the employee and practices the employer expects the
employee to be prepared to use, such as emergency response
procedures.
---------------------------------------------------------------------------
Under paragraph (b)(5), training required by paragraph (b) can be
provided in a classroom or on-the-job, or in both places. This
paragraph is taken directly from existing Sec. 1910.269(a)(2)(v). The
Agency has found these types of instruction, which provide workers an
opportunity to ask questions and have the employer respond to them, to
be most effective. (See, for example, OSHA's publication ``Training
Requirements in OSHA Standards and Training Guidelines.'') OSHA
received no comments on this provision, and it is being adopted as
proposed.
Paragraph (b)(6) provides that training given in accordance with
Sec. 1926.950(b) has to result in employee proficiency in required
work practices and introduce procedures necessary for subpart V
compliance. OSHA did not receive any comments on this paragraph, which
is borrowed from existing Sec. 1910.269(a)(2)(vi), and is adopting it
without change from the proposal. Unless a training program establishes
an employee's proficiency in safe work practices and that employee then
demonstrates his or her ability to perform the necessary work
practices, there will be no assurance that the employee will work
safely. An employee who has attended a single training class on a
complex procedure, for example lockout and tagging procedures used in
an electric generating plant, will not generally be deemed proficient
in that procedure. Paragraph (b)(6), and the demonstration of
proficiency requirement contained in paragraph (b)(7) (discussed
later), will ensure that employers do not try to comply with Sec.
1926.950(b) by simply distributing training manuals to employees. These
provisions require employers to take steps to assure that employees
comprehend what they have been taught and that they are capable of
performing the work practices mandated by the standard. OSHA believes
that this maximizes the benefits of the training required under the
final rule.
Existing Sec. 1910.269(a)(2)(vii) requires employers to certify
that each employee has received required training. The certification
has to be made when the employee demonstrates proficiency in the
relevant work practices and maintained for the duration of the
employee's employment. OSHA proposed to eliminate this certification
requirement and to replace it with paragraphs in both Sec. 1910.269
(paragraph (a)(2)(vii)) and subpart V (Sec. 1926.950(b)(7)) that
simply require the employer to determine that each employee has
demonstrated proficiency in the necessary work practices. In proposing
this change, the Agency aimed to reduce unnecessary paperwork burdens
on employers (70 FR 34835). In the preamble to the proposal, OSHA
explained that, in the absence of training certifications, compliance
with training requirements could be determined through employee
interviews (id.). A note following this proposed paragraph explained
that, although not required, employee
[[Page 20350]]
training records could continue to be used by employers to track when
employees demonstrate proficiency. OSHA specifically requested comments
on whether the existing certification requirement is necessary and
whether the proposed standard, without a certification requirement, was
adequately protective.
OSHA received a lot of feedback on this issue. Many rulemaking
participants supported OSHA's proposal. (See, for example, Exs. 0125,
0127, 0159, 0169, 0171, 0175, 0177, 0179, 0186, 0212, 0222, 0227.) For
instance, Mr. Brian Skeahan of Public Utility District No. 1 of Cowlitz
County commented that the change from the certification requirement to
the requirement to demonstrate proficiency was an ``acceptable
modification,'' pointing out that recording on-the-job training can be
burdensome (Ex. 0159). Mr. Wilson Yancey of Quanta Services provided
similar comments, expressing ``support [for] OSHA's proposal to require
only that the employer ensure that the employee is able to demonstrate
proficiency'' (Ex. 0169). He commented that the ``certification
requirement is an unnecessary recordkeeping burden that would be
difficult to administer in practice because of the way that crews are
spread out and would not advance employee safety and health in any
material way'' (id.). Mr. Brooke Stauffer of the National Electrical
Contractors Association also supported the proposal: ``NECA supports
the proposed changes from certification of training to demonstration of
proficiency. We do not support a requirement to keep records of
employee training, due to high turnover in the line construction
industry. Such record-keeping also isn't feasible to document on-the-
job training . . . .'' (Ex. 0171). EEI commented that ``in the
experience of EEI members, the existing training certification
requirement in paragraph 1910.269(a)(2)(vii) has proven to be of no
value, and is unnecessary and should be eliminated'' (Ex. 0227). Also,
Southern Company told OSHA:
Since on-the-job training is recognized as a method for training
employees, it would be difficult or impossible to maintain records
for this type of training. We agree that records of training that
are normally maintained (classroom instruction or hands-on training
exercises) should be recognized as a method for determining if an
employee has been trained. However, it is the employee's ability to
demonstrate their proficiency which should be the measure of the
employee's ability to work safely. [Ex. 0212]
Other commenters objected to the proposed move away from the
certification requirement, stressing the importance of recordkeeping.
(See, for example, Exs. 0200, 0213, 0230, 0505.) For instance, Mr.
Tommy Lucas of TVA commented:
To ensure that employees have been trained and demonstrated
proficiency, the training should be documented. Documented training
is necessary for managers and supervisors to know whether or not the
employee is proficient in the skills required for tasks being
assigned. Having training records available to managers and
supervisors will better protect employees. [Ex. 0213]
IBEW similarly supported a recordkeeping requirement for training,
commenting as follows:
The standard should require employers to record employee
training. The question that needs [to be] asked is how, if training
records are not kept, can an employer comply with requirements for
initial and ongoing training? Most training that is offered in this
industry is structured using somewhat universal subjects and
methods. Those employers that are engaged in this type of training
are most likely recording initial training and any other additional
training that they may offer. Recording of employee training will
not impose any unnecessary or costly requirement on employers that
they are not currently doing. [Ex. 0230]
Mr. Donald Hartley with IBEW further explained the union's position
in his testimony during the 2006 public hearing:
OSHA should require employers to certify that employees are
proficient in the tasks that they are assigned to perform and to
maintain records documenting their demonstrated proficiency. There
is simply no way to ensure that employers are actually certifying
employees if documentation is not required. Moreover, the records
can be used over time to determine whether employees have satisfied
the training requirements in the past and whether retraining or
recertification is necessary. [Tr. 874]
Mr. Steven Semler, counsel for ULCC, asked that OSHA retain the
existing training certification requirement because it ``works well . .
. and has enhanced safety . . . by requiring the checkoff of
certification of employees in writing'' (Tr. 743). Mr. Scott Packard of
Wright Tree Service testified on behalf of TCIA that the certification
requirement ``has clearly raised the level of safety in the line
clearance tree trimming industry overall'' (Tr. 751). The TCIA further
commented:
The current and existing ``shall certify'' language has raised
the level of safety in the line clearance tree trimming industry as
well as in non-line clearance firms with exposure to the electrical
hazard and hence the need to train and to certify. This requirement
is particularly important among smaller employers with less
sophisticated safety programs.
Requiring ``certification'' of employees having received the
required safety training has imposed internally within line
clearance contractors' and others' training procedures creation of
failsafe mechanisms to unambiguously assure the employee has
received the required safety training. The newly-proposed method is
a more subjective--hence looser--requirement. [Ex. 0200; footnote
omitted; emphasis included in original.]
Mr. Peter Gerstenberger, also testifying on behalf of TCIA, suggested
that ``it's the connotation of the word `certify' that just accords the
whole process more importance'' (Tr. 811-812).
OSHA has carefully considered the feedback it received on this
issue and has decided to adopt the requirement as proposed, without a
certification requirement. OSHA believes this gives employers maximum
flexibility, while still ensuring that employees have demonstrated
required proficiencies. The Agency concludes that it is particularly
important to provide flexibility for employers using less formal (that
is, on-the-job) methods to train workers because, as noted by Messrs.
Stauffer and Yancey, it could be challenging for these employers to
record training that occurs sporadically and in circumstances that are
not conducive to the preparation of written certifications. In
addition, as noted in the preamble to the proposal, the Agency does not
need training certifications for enforcement purposes under final Sec.
1910.269 and subpart V because compliance with the training
requirements can be determined through interviews with management and
workers (70 FR 34835). Therefore, the Agency believes that the plain
language of the final rule will be at least as effective in protecting
workers as a requirement to certify these records; in this regard, the
plain language of the final rule still requires employers to determine
that each employee demonstrates necessary proficiencies.
OSHA also points out that Note 1 to paragraph (b)(7) specifically
clarifies that the rule does not prohibit the keeping of training
records. In light of the comments received, OSHA expects that some
employers will voluntarily elect to prepare and maintain training
records for their own purposes in tracking who has received training
and demonstrated the requisite level of proficiency.
OSHA proposed a second note to paragraph (b)(7) of Sec. 1926.950
that described how an employer may treat training that an employee has
received previously (for example, through previous employment). OSHA
explained in the preamble to the proposal that employers relying on
training provided by others would need
[[Page 20351]]
to take steps to verify that the employee had been trained and to
ensure that the previous training was adequate for the work practices
the employee would be performing (70 FR 34835). The proposed note read:
Employers may rely on an employee's previous training as long as
the employer: (1) Confirms that the employee has the job experience
appropriate to the work to be performed, (2) through an examination
or interview, makes an initial determination that the employee is
proficient in the relevant safety-related work practices before he
or she performs any work covered by this subpart, and (3) supervises
the employee closely until that employee has demonstrated
proficiency in all the work practices he or she will employ.
Several rulemaking participants noted that some employees receive
training from third parties, such as unions, and supported OSHA's
effort to recognize the potential portability of training. (See, for
example, Exs. 0162, 0169, 0234.) For example, MYR Group stated: ``MYR
Group . . . supports allowing reliance on prior training through
demonstration of proficiency--in the circumstance of prior training not
conducted by the employer a proficiency demonstration is a reasonable
means of avoiding duplicative training'' (Ex. 0162).
The line-clearance tree trimming industry, however, claimed that
the new note would make it too difficult for an employer to rely on
training that its employees received elsewhere. The tree trimmers
argued that closely supervising all newly hired employees would be
unworkable. (See, for example, Exs. 0174, 0200; Tr. 753-754.) For
instance, Mr. Steven Semler representing ULCC argued that the note
would unnecessarily require the close scrutiny of experienced and
already-trained employees and suggested that the high rate of turnover
in the line-clearance tree trimming industry made close supervision of
all new hires administratively impractical (Ex. 0174). ULCC preferred
existing Sec. 1910.269(a)(2)(vii), which contained the training
certification requirement, because, in its view, the existing standard
permitted an employer to ``verify the [previous employer's]
certification records and observe the demonstrated proficiency of the
newly hired employee staff'' (id.). According to ULCC, ``the current
standard desirably enable[d] continuity of operations with trained
personnel whose proficiency is determined by verification of training
and observance of work'' (id.). TCIA echoed these arguments and stated
that the proposed new note ``adds a new hardship to the employer
without any offset whatsoever in safety'' (Ex. 0200).
OSHA did not impose any new burdens on employers through proposed
Note 2 to paragraph (b)(7). The proposed note simply explained one way
for an employer to comply with the proficiency-demonstration
requirement in final paragraph (b)(7). Tree care industry witnesses
described the process they use to determine the proficiency of newly
hired experienced employees, and OSHA believes that process is similar
to the steps for determining proficiency that were described in
proposed Note 2 (Tr. 715-717, 805-806). For example, one tree-care
industry witness described his company's process for hiring an
experienced employee as follows:
[T]here would be face-to-face interviews. There will be
verification of prior certifications and/or training. There will be
observations done and there will be field evaluations [to verify]
that . . . the certification that they claim to possess they do.
[Tr. 805-806]
Although the tree care industry appears to use the process that
OSHA envisioned in drafting the proposed note, OSHA reworded the note
in the final rule to more closely match the process described by the
tree care industry. The note in the final rule explains that for an
employee with previous training, an employer may determine that that
employee has demonstrated the required proficiency using the following
process: (1) Confirm that the employee has the training required by
final Sec. 1926.950(b), (2) use an examination or interview to make an
initial determination that the employee understands the relevant
safety-related work practices before he or she performs any work
covered by subpart V, and (3) supervise the employee closely until that
employee has demonstrated the required proficiency.
The revised note makes it clearer than the proposed note that the
process described in the note is not mandatory. Any process that
ensures that the employee is not treated as having completed training
until the employer confirms that he or she has had the training
required by paragraph (b), and has demonstrated proficiency as required
by paragraph (b)(7), is acceptable. The revised language also replaces
the phrase ``in all the work practices he or she will employ'' with
``as required by this paragraph'' at the end of the note to make it
clear that the process is designed to ensure that the employee
demonstrates proficiency to the employer as required by the final rule.
Since subpart V covers some transient workers, and training is
often provided by previous employers or third parties (for example,
unions), some commenters suggested that employers could benefit from
the development of a system for storing and accessing training
information for all covered workers (Exs. 0196, 0227). EEI noted the
potential value of such a system, but did not think it should be an
OSHA requirement (Ex. 0227). Also, Mr. Lee Marchessault with Workplace
Safety Solutions recommended that OSHA consider recognizing a universal
training booklet, called a training passport in some countries, that
workers would carry to prove to employers that they have been trained
and have demonstrated their abilities (Ex. 0196; Tr. 573-574).
OSHA understands the third-party process by which many line workers
are trained. The Agency has adopted Note 2 to paragraph (b)(7) in the
final rule partly in recognition that this type of training takes
place. The final rule is designed to allow employers to rely on
previous training conducted by unions, previous employers, or other
third parties. In fact, it would be permissible for employer groups,
unions, or other third parties to design and implement a system such as
the training passport recommended by Mr. Marchessault, provided that
employers using the system complied with relevant OSHA training
requirements. OSHA stresses that it is the employer's, not the
employee's, obligation to determine that the employee demonstrates
proficiency before he or she is deemed to have completed the required
training.
OSHA proposed to add provisions to both subpart V and Sec.
1910.269 concerning communication between host employers (utilities)
and the contractors they hire to work on their systems.\59\ As OSHA
explained in the preamble to the proposal, the work covered by Subpart
V is frequently done by an employer working under contract to an
electric utility (70 FR 34835). Traditionally, employers with electric
power generation, transmission, and distribution systems have had a
workforce sufficient for the day-to-day maintenance of their systems.
These employers usually hire contractors when the work to be performed
goes beyond routine maintenance. Thus, contractors typically construct
new transmission and distribution lines,
[[Page 20352]]
perform extensive renovations of transmission and distribution lines
(such as replacing a large number of utility poles or upgrading a line
to a higher voltage), do line-clearance tree trimming, overhaul
generation plants, and repair extensive storm damage. Mr. Donald
Hartley of IBEW testified at the 2006 public hearing in this rulemaking
that ``utilities are increasingly contracting out work, both because
contractors bring expertise that the utilities do not themselves
possess and as a cost-saving measure to reduce their overall payroll
and overhead'' (Tr. 875).
---------------------------------------------------------------------------
\59\ In this discussion, OSHA uses the term ``electric utility''
and ``host employer'' synonymously. In some cases, however, the host
employer may not be an electric utility. See the discussion of the
definition of ``host employer'' later in this section of the
preamble.
---------------------------------------------------------------------------
In proposing the host-contractor provisions, OSHA explained that,
in many (if not all) instances, sharing of information between the
electric utility employer and the contractor is necessary to adequately
protect the contractor's employees from hazards associated with work on
the utility's facilities (70 FR 34838-34839). For example, if the host
employers and contract employers do not coordinate their procedures for
deenergizing lines and equipment, then contractor employees could
mistakenly believe that a line is deenergized when it is not. This
mistake could have potentially fatal results for contractor employees.
In a similar fashion, as OSHA also explained in the preamble to the
proposal, the safety of electric utility employees is affected by the
contract employer's work (id.). For example, a contractor's work could
cause an overhead energized line to fall on a deenergized line on which
an electric utility employee is working, creating hazards for the
electric utility employee. Although electric utility employees do not
typically work with contract employees, sometimes they do work
together. For example, it is common practice for contract employees and
electric utility employees to work side by side during emergency-
restoration operations, such as after a big storm (Ex. 0505; Tr. 392,
1379-1380). Additionally, contractors in electric power generation
plants will be working near utility employees who work in the plant
(Tr. 985). The record also indicates that utility and contract
employees work side by side in other situations, including during
outages on transmission lines (Ex. 0505; Tr. 1380) and while working in
the same substation (Ex. 0505; Tr. 313-314, 559).
Because in this host-contractor relationship the work of (or
information possessed by) one affects the safety of the other's
employees, OSHA believed that it was necessary for host employers and
contractors to cooperate and communicate with each other to provide
adequate protection for all employees maintaining or constructing
electric power generation, transmission, or distribution facilities.
Thus, OSHA proposed requirements in Sec. 1926.950 (as well as in Sec.
1910.269) to ensure the necessary exchange of information between host
employers and contract employers. The requirements in the proposal were
loosely based on similar provisions in the Agency's standard for
process safety management (PSM), Sec. 1910.119(h).
IBEW agreed that there was a need for host-contractor requirements
in these standards, explaining that it ``fully supports the basic
principles underlying OSHA's proposals regarding the reciprocal
obligations of the host employers and contract employers to provide one
another with information necessary to safeguard their workforces'' (Tr.
878).
Mr. Donald Hartley of IBEW testified about the importance of host
employers and contract employers exchanging ``critically important''
information (Tr. 877-878). He elaborated that for contractor employees
to be ``equipped to deal with potential hazards associated with this
dangerous work, [they require] access to information that may be in the
sole possession of the host employer'' (Tr. 876). He continued:
[W]hile some contract employers report that utilities routinely
provide this information with every job they contract out, as we
have heard, others have found that utilities refuse to disclose that
information about operating conditions even when the contract
employers specifically request it.
Just as the host employer possesses information critically
important to the safety of contract employees, the contract
employees may in the course of their work discover conditions about
which the host is unaware, also recently testified to. This is
particularly true when contract employees are working out in the
field on equipment that the host employer may not regularly inspect.
[Tr. 877-878]
OSHA received a number of comments suggesting that it should not
include host-contractor provisions in the final rule. The Agency has
considered these comments and concluded that, although some changes to
the proposed regulatory text are necessary (as described later in this
section of the preamble), the information-sharing requirements in Sec.
1926.950(c) of this final rule are reasonably necessary and
appropriate.
Some commenters took the position that the extent to which host
employers and contract employers exchange information with each other
is an issue best left to private contracts between the parties. (See,
for example, Exs. 0149, 0151, 0159, 0172, 0179, 0188.) For example, the
Lewis County Public Utility District commented:
We feel that any arrangement between a contractor and host
employer is best handled by contractual language between the two
parties without OSHA involvement. This includes how the host
employer and contractor communicate and exchange information. [Ex.
0149].
Evidence in the record makes clear, however, that relying on
private contracts has proven to be an ineffective method of ensuring
the adequate exchange of information between hosts and contractors. A
number of participants at the 2006 public hearing explained that there
are times when contractors are unable to get the information they need
from utilities to permit the contractors' employees to work safely. For
example, Mr. Donald Hartley of IBEW testified that ``complying with
[OSHA standards] requires access to information that may be in the sole
possession of the host employer'' (Tr. 876). As noted earlier, he also
stated that some ``utilities refuse to disclose . . . information about
operating conditions even when the contract employers specifically
request it'' (Tr. 877). An ESCI representative agreed, testifying: ``I
work with a number of utility contractors that tell me that [t]here are
a number of things that they are not provided that they need'' (Tr.
1240). Also, MYR noted that ``although . . . the transfer of
information between utilities and contractors has improved tremendously
over the last several years, issues still exist in the industry today''
(Tr. 1333). In light of this evidence, OSHA concludes that relying on
the parties' private contracts to serve this function is unlikely to
ensure that host employers and contract employers receive all of the
information they need to protect their workers.
Some commenters suggested that OSHA does not have statutory
authority to adopt host-contractor provisions. (See, for example, Exs.
0168, 0177, 0209, 0227, 0501.) For instance, EEI commented:
The fundamental point is that the OSH Act simply does not confer
authority upon OSHA to require one employer to be responsible for
the safety or health of another employer's employees. Any final rule
that seeks to impose duties on host employers and contractors vis-
[agrave]-vis each other will be legally vulnerable. [Ex. 0227]
OSHA has clear authority to include the host-contractor provisions
in the final rule. First, the plain language of the OSH Act and its
underlying purpose support OSHA's authority to place requirements on
employers that are necessary to protect the employees of
[[Page 20353]]
others.\60\ Second, congressional action subsequent to passage of the
OSH Act recognizes this authority. Third, OSHA has consistently
interpreted its statutory authority as permitting it to impose
obligations on employers that extend beyond their own employees, as
evidenced by the numerous standards, including several construction
standards, that OSHA has promulgated with multiemployer provisions.
Finally, OSHA's authority to place obligations on employers that reach
beyond their own employees has been upheld by numerous courts of
appeals and the OSHRC.
---------------------------------------------------------------------------
\60\ As explained later in this section of the preamble, the
overall sharing of information that will occur in accordance with
the final host-contractor provisions will help protect the employees
of both host employers and contract employers.
---------------------------------------------------------------------------
The purpose of the OSH Act is to assure so far as possible safe and
healthful working conditions for every working man and woman in the
nation (29 U.S.C. 651(b)). To achieve this goal, Congress authorized
the Secretary of Labor to establish mandatory occupational safety and
health standards. The Act broadly defines an OSHA standard as a rule
that ``requires conditions, or the adoption or use of one or more
practices, means, methods, operations, or processes, reasonably
necessary or appropriate to provide safe or healthful employment and
places of employment'' (29 U.S.C. 652(8)). (See Building & Constr.
Trades Dep't., AFL-CIO v. Brock, 838 F.2d 1258, 1278 (D.C. Cir. 1988).)
OSHA standards must prescribe measures that are appropriate to protect
``places of employment;'' nothing in the statutory language suggests
that OSHA may do so only by regulating an employer's interactions with
its own employees. On the contrary, the OSH Act's broad language gives
OSHA almost ``unlimited discretion'' to devise means to reach the
statutory goal. (See United Steelworkers v. Marshall (Steelworkers),
647 F.2d 1189, 1230 (D.C. Cir. 1980).)
Similarly, Section 5(a)(2) of the OSH Act provides that each
employer ``shall comply with occupational safety and health standards
promulgated under'' the OSH Act (29 U.S.C. 654(a)(2)).\61\ Nothing in
this language suggests that compliance is required only when necessary
to protect the employer's own employees or that the employer is
entitled to endanger other employer's employees at the worksite.
---------------------------------------------------------------------------
\61\ This language is in marked contrast to the language of
Section 5(a)(1) of the OSH Act (known as the ``general duty
clause''), which requires each employer to ``furnish to each of his
employees employment and a place of employment which are free from
recognized hazards that are causing or are likely to cause death or
serious physical harm to his employees'' (29 U.S.C. 654(a)(1)). (See
Brennan v. OSHRC, 513 F.2d 1032, 1037-38 (2d Cir. 1975).)
---------------------------------------------------------------------------
Section 6(b)(7) of the OSH Act specifically permits the Secretary
to ``prescribe the use of labels or other appropriate forms of warning
as are necessary to insure that employees are apprised of all hazards
to which they are exposed . . . and proper conditions and precautions
of safe use or exposure'' (29 U.S.C. 655(b)(7)). (Notably, the Agency's
authority to require warnings is not limited to information that would
warn the employer's own employees of hazards.) Finally, Section 8(g)(2)
of the OSH Act generally affords the Secretary authority to ``prescribe
such rules and regulations as he may deem necessary to carry out . . .
responsibilities under'' the OSH Act (29 U.S.C. 657(g)(2)).
In short, the statute focuses on workplace conditions to effectuate
the OSH Act's congressional mandate and not on a particular employment
relationship. The OSH Act's underlying purpose is broad--to assure safe
and healthful working conditions for working men and women--and
Congress made clear that it expected the Act to protect all employees.
(See H. Rep. No. 91-1291, 91st Cong., 2d Sess., pp.14-16 (July 9,
1970).) Numerous references in the legislative history of the OSH Act
discuss requiring employers to provide a safe and healthful ``place of
employment.'' (See for example, S. Rep. No. 91-1282, 91st Cong., 2d
Sess., p. 10 (Oct. 6, 1970).) The OSH Act tasks OSHA with promulgating
rules that will create safe places of employment, notwithstanding the
many varied employment relationships that might exist at a worksite.
Subsequent congressional action has also recognized OSHA's
authority to impose responsibilities on employers to protect employees
who are not their own. For example, Congress directed OSHA to develop a
chemical process safety standard (the PSM Standard) requiring employers
to ``ensure contractors and contract employees are provided appropriate
information and training'' and to ``train and educate employees and
contractors in emergency response'' (Pub. L. 101-549, Title III, Sec.
304, Nov. 15, 1990, 104 Stat. 2576 (reprinted at 29 U.S.C. 655 Note)).
This is a clear ratification of the Agency's authority to require
employers to protect the employees of others. Congress also approved of
the Agency's authority when it relied on the provisions of OSHA's
Hazard Communication Standard in promulgating the Emergency Planning
and Community Right-to-Know Act (EPCRA), 42 U.S.C. 11001-11050. The
Hazard Communication Standard requires, in part, that manufacturers and
importers of hazardous chemicals provide information for the benefit of
downstream employees.\62\ (See 29 CFR 1910.1200; see also Martin v.
American Cyanamid Co., 5 F.3d 140, 141 (6th Cir. 1993) (noting that the
Hazard Communication Standard requires ``that a manufacturer of
hazardous chemicals inform not only its own employees of the dangers
posed by the chemicals, but downstream employers and employees as
well'').) Congress incorporated provisions of the Hazard Communication
Standard in EPCRA as a basis for triggering obligations on owners or
operators of facilities producing hazardous chemicals to provide local
governments with information needed for emergency response. Had
Congress not approved of the multiemployer provisions in the Hazard
Communication Standard, it would not have approved of it as a basis for
obligations in EPCRA.
---------------------------------------------------------------------------
\62\ As a rationale for those provisions, OSHA explained that
chemical manufacturers and importers are in the best position to
develop, disseminate, and obtain information about their products.
(See 48 FR 53280, 53322, Nov. 25, 1983.)
---------------------------------------------------------------------------
Furthermore, OSHA has consistently interpreted the OSH Act as
authorizing it to impose multiemployer obligations in its standards. In
addition to the Hazard Communication Standard and the PSM Standard
already noted, OSHA included multiemployer provisions in its standard
for powered platforms, which requires that a building owner inform
employers that the building installation has been inspected and is safe
to use. (See 29 CFR 1910.66(c)(3).) OSHA also has imposed multiemployer
obligations in construction standards. For example, OSHA exercised its
OSH Act authority to promulgate provisions in the Asbestos Standard for
the construction industry that require building owners to communicate
the presence of asbestos or presumed asbestos-containing materials to
certain employers with employees who may be exposed to such materials.
(See 29 CFR 1926.1101(k).) In OSHA's Steel-Erection Standard, the
Agency imposed duties on controlling contractors to ensure that site
conditions are safe for steel erection. (See 29 CFR 1926.752(c).) More
recently, OSHA promulgated rules requiring controlling entities and
utilities to take steps to protect other employers' employees during
crane operations. (See 29 CFR 1926.1402(c), 1926.1402(e), 1926.1407(e),
1926.1408(c), and 1926.1424(b).)
Finally, OSHA's authority to impose these provisions is confirmed
by the
[[Page 20354]]
decisions of numerous courts of appeals and the Review Commission. For
example, the Third Circuit upheld the information-sharing requirements
in the Asbestos Standard for the construction industry, noting: ``We
are not convinced that the Secretary is powerless to regulate in this
[way], especially given the findings she has made regarding the
importance of building owners in the discovery and communication of
asbestos hazards.'' Secretary of Labor v. Trinity Indus., Inc.
(Trinity), 504 F.3d 397, 402 (3d Cir. 2007). (See also Universal
Constr. Co. v. OSHRC, 182 F.3d 726, 728 (10th Cir. 1999) (following
decisions from Second, Sixth, Seventh, Eighth, and Ninth Circuits
holding that an employer's duties and OSHA standards may extend beyond
an employer's own employees).)
EEI asserted that Sec. 1910.12(a) precludes host-contractor
requirements in subpart V, commenting:
Section 1910.12(a), standing alone, precludes OSHA from
requiring an employer covered by the final Part 1926 rule to take
any responsibility for the safety of another employer's employees,
certainly insofar as the final standard purports to regulate
``construction.'' [Ex. 0227].
OSHA disagrees with EEI. Paragraph (a) of Sec. 1910.12 provides:
The standards prescribed in part 1926 of this chapter are
adopted as occupational safety and health standards under section 6
of the Act and shall apply, according to the provisions thereof, to
every employment and place of employment of every employee engaged
in construction work. Each employer shall protect the employment and
places of employment of each of his employees engaged in
construction work by complying with the appropriate standards
prescribed in this paragraph.
Paragraph (a) of Sec. 1910.12 has no bearing on the host-
contractor requirements in the final rule because the Agency clearly
intends to assign specific responsibilities to host employers and
contract employers, and the final regulatory text plainly reflects that
intent. (See Trinity, 504 F.3d at 402 (rejecting argument premised on
Sec. 1910.12(a) where ``the regulation at issue . . . specifically
applie[d] to building owners'').) Moreover, the Eighth Circuit and the
Review Commission have squarely rejected EEI's argument. In Solis v.
Summit Contractors, Inc. (Summit Contractors), the Eighth Circuit
concluded that Sec. 1910.12(a) is ``unambiguous'' in that it does not
preclude OSHA from citing an employer when only employees of other
employers are exposed to the hazard in question (558 F.3d 815, 825 (8th
Cir. 2009)). The Review Commission similarly held that Sec. 1910.12(a)
does not prevent OSHA from citing a controlling employer that does not
have exposed employees (Summit Contractors, Inc., 23 BNA OSHC 1196 (No.
05-0839, Aug. 19, 2010)). Both the Eighth Circuit and the Review
Commission emphasized the language in Sec. 1910.12(a) establishing a
duty on the part of employers to protect ``places of employment'' as
well as employees. (See, for example, Summit Contractors, 558 F.3d at
824.) The first sentence in Sec. 1910.12(a) makes the construction
standards applicable to every employment and to every ``place of
employment'' of every construction employee, and the second sentence,
by providing that each employer must protect ``places of employment,''
does not negate the broad reach of the first sentence.
Moreover, the history of Sec. 1910.12(a) reveals that the purpose
of this provision is to extend, not limit, the Agency's authority.
Indeed, Sec. 1910.12(a) is located in a subpart entitled ``Adoption
and Extension of Established Federal Standards,'' which was established
to extend OSHA's authority through adoption of the Construction Safety
Act's standards. (See 29 CFR 1910.11(a) (``The provisions of this
subpart . . . adopt[,] and extend the applicability of, established
Federal standards . . . with respect to every employer, employee, and
employment covered by the Act.'').) Thus, neither the language nor the
context of Sec. 1910.12(a) suggest a conflict with the information-
sharing requirements in this final rule.
Some commenters asserted that the proposed host-contractor
provisions inappropriately expanded or conflicted with OSHA's existing
Multi-Employer Citation Policy (CPL 02-00-124 (Dec. 10, 1999)). (See,
for example, Exs. 0162, 0167, 0170, 0207, 0237.)
These comments reflect a misunderstanding of both the proposal and
the multiemployer citation policy. The host-contractor provisions do
not rely on, or modify, the Agency's multiemployer enforcement policy.
(See Trinity, 504 F.3d at 402 (distinguishing an enforcement action
under the multiemployer provisions of the Asbestos Standard for
construction from cases in which the Agency invoked the multiemployer
citation policy).) Rather, the multiemployer citation policy and the
host-contractor provisions represent separate exercises of OSHA's
statutory authority to protect places of employment. The host-
contractor provisions and the multiemployer enforcement policy operate
in different, yet entirely consistent, ways to permit the Agency to
fulfill its statutory mission.
OSHA's multiemployer citation policy simply recognizes the existing
responsibilities of different employers at multiemployer worksites
under the Act and OSHA standards. For example, employers have a duty
not to create hazardous conditions that violate OSHA standards,
regardless whether it is their own employees or another employer's that
they endanger. (Employers who do so are referred to as ``creating
employers.'') And employers have a duty to protect their own employees
from violative conditions, even if created by another employer. Such
``exposing employers'' must take reasonable steps to correct the
hazards or otherwise protect their workers. Similarly, ``controlling
employers,'' that is, employers with general supervisory authority over
safety and health at a worksite, by virtue of that authority, have
certain responsibilities to prevent and detect violations affecting
employees at the workplace.
When OSHA promulgates new safety and health standards, it does so
against this background principle that employers share responsibility
for working conditions, and thus for OSHA compliance, at multiemployer
worksites. Therefore, when the Agency issues a new safety or health
standard, it is with the intention that creating, exposing, and
controlling employers at multiemployer worksites will exercise their
respective responsibilities to ensure that affected employees are
protected as required by the standard.
In some situations, however, the general background principles
reflected in the multiemployer policy will not be sufficient to ensure
the safety of workplaces; in those instances, OSHA may find it
necessary to impose additional or more specific obligations on
particular employers to protect workers. The host-contractor provisions
in this final rule, as well as similar information-sharing provisions
in the Hazard Communication Standard, the PSM Standard, and the
Asbestos Standard for construction, are examples of the Agency
regulating in this manner. In this rulemaking, OSHA determined that the
final host-contractor provisions are necessary, in addition to the
general background responsibilities employers have, to ensure the
safety of affected employees. Not all utilities (or host employers)
will have sufficient authority over, or relationships with, contractor
worksites to qualify as controlling employers under the multiemployer
citation policy. In addition, the final rule prescribes with
specificity the information-sharing responsibilities of hosts and
contractors. The specific information-sharing
[[Page 20355]]
requirements in the host-contractor provisions are necessary to ensure
that critical information sharing and coordination take place at all
workplaces where employees perform work covered by the final rule.
Some commenters argued that the host-contractor provisions could
create employer-employee relationships between host employers and
contractor employees. (See, for example, Exs. 0173, 0178.) For
instance, the Farmers Rural Electric Cooperative Corporation commented:
It is up to the contractor and the employees of that firm to
perform this work, under their supervision and direction, using
their work practices and safety rules. Should we as hosts begin to
direct their work, provide supervision of that work, oversee their
safety practices, the IRS would then say they are our employees and
are entitled to benefits. [Ex. 0173]
Also, some commenters suggested, more generally, that the host-
contractor provisions could expand the potential legal liability of the
respective employers. (See, for example, Exs. 0168, 0187, 0220, 0226.)
A few commenters argued that in these ways the proposed host-contractor
provisions went so far as to violate the OSH Act. For example, the
National Association of Home Builders commented:
[W]e also believe that OSHA's multi-employer language in the
proposed rule in Subpart V impermissibly expands the common law
liability of host/general contractors in violation [of Section
4(b)(4)] of the OSH Act. [Ex. 0168].
OSHA concludes that, under any of the potentially applicable legal
tests for an employment relationship, the final host-contractor
provisions are unlikely to result in one employer exercising the type
or degree of control over the employees of another employer that would
create an employer-employee relationship when one otherwise would not
have existed. (See, for example, Nationwide Mutual Ins. Co v. Darden,
503 U.S. 318 (1992) (common-law test for determining who is an
``employee''); Antenor v. D&S Farms, 88 F.3d 925 (11th Cir. 1996)
(factors relevant to determining whether two employers are ``joint
employers'' of an individual employee for purposes of the Fair Labor
Standards Act); Weber v. C.I.R., 60 F.3d 1104 (4th Cir. 1995) (test
for determining whether there is an employment relationship for income
tax purposes).)
OSHA also disagrees with the commenters' claim about Section
4(b)(4) of the OSH Act. That provision states:
Nothing in [the OSH] Act shall be construed to . . . in any
manner affect any workmen's compensation law or to enlarge or
diminish or affect in any other manner the common law or statutory
rights, duties, or liabilities of employers and employees under any
law with respect to injuries, diseases, or death of employees
arising out of, or in the course of, employment. [29 U.S.C.
653(b)(4)]
This provision serves two purposes: First, it establishes that the OSH
Act does not create a private right of action. (See, for example, Crane
v. Conoco, Inc., 41 F.3d 547 (9th Cir. 1994).) Second, it makes clear
that the duties and liabilities imposed under the OSH Act do not
displace the duties and liabilities that exist under State tort and
workers' compensation schemes. (See, for example, Frohlick Crane Serv.,
Inc. v. OSHRC, 521 F.2d 628 (10th Cir. 1975).)
OSHA acknowledges that State courts are free to permit the use of
OSHA regulations, including these final host-contractor provisions, as
evidence of a standard of care in a negligence action. (See, for
example, Knight v. Burns, Kirkley & Williams Constr. Co., 331 So.2d 651
(Ala. 1976).) However, it does not follow that regulations used in that
fashion are invalid under Section 4(b)(4) on the ground that they
expand employers' common-law liabilities, a result that would limit the
Secretary's rulemaking authority to issuing regulations that codify
duties already owed by employers at common law. Such a result would be
inconsistent with Congressional intent in promulgating the OSH Act, and
no court has ever invalidated an OSHA regulation on the ground that it
violates Section 4(b)(4). Indeed, courts have squarely rejected the
argument that Section 4(b)(4) precludes multiemployer enforcement
practices. For example, in Summit, the Eighth Circuit concluded that
OSHA's multiemployer citation policy did not violate Section 4(b)(4),
explaining that even though it could ``increas[e] an employer's
liability at common law[,]'' the policy ``neither creates a private
cause of action nor preempts state law'' (558 F.3d at 829). (See also
Steelworkers, 647 F.2d at 1234-36.)
OSHA decided to adopt the proposed host-contractor provisions, with
some substantial modifications (described later in this section of the
preamble), in the final rule. Before addressing each specific
provision, however, OSHA must first address the scope of these
requirements.
The proposal defined a ``host employer'' as ``[a]n employer who
operates and maintains an electric power transmission or distribution
installation covered by subpart V of this Part and who hires a contract
employer to perform work on that installation.'' This definition
included electric utilities and other employers that operate and
maintain electric power transmission or distribution installations.
However, it did not include employers that own, but do not operate and
maintain, such installations. The Agency believed that entities that do
not operate or maintain these installations would generally not have
the expertise necessary to work safely on transmission or distribution
lines and equipment and would have little hazard-related knowledge to
pass on to contractors. In addition, the employees of such entities
would have little if any exposure to hazards created by a contract
employer. The Agency invited comments on whether excluding such
employers from the host-contractor provisions would unduly jeopardize
employee safety and whether any of the host-contractor provisions could
reasonably be applied to such employers.
Some commenters, such as Energy United EMC (Ex. 0219), supported
the proposed exclusion of owners that do not operate or maintain
installations. Ohio Rural Electric Cooperatives commented: ``If an
employer only owns but does not actually operate its own lines or
equipment then that employer would certainly not be able to pass on any
useful information to a contractor'' (Ex. 0186).
IBEW took the position that ``[e]xcluding such employers from any
host-contract employer provisions, in general, should not jeopardize
employee safety,'' but questioned whether those entities may make
``decisions on how the system will be operated, such as switching
procedures and load transfer, that . . . could have a direct impact on
worker safety'' (Ex. 0230). The union went on to suggest that
``[w]hatever entity has the responsibility and/or decision making power
as to how the system is operated should be included in the proposed
provisions'' (id.).
Others commented that the host-contractor provisions should apply
to all system owners. Ms. Susan O'Connor of Siemens Power Generation
commented, for example, that excluding owners that do not perform
operations or maintenance could jeopardize employee safety ``in
situations where host employers might use this provision as a loophole
to avoid regulation'' (Ex. 0163). Ms. O'Connor suggested that a utility
could ``eliminate [its] qualified maintenance department and outsource
. . . maintenance to avoid dealing with this regulation'' (id.). MYR
Group also ``believe[d] that the protections afforded to contractors
through the host employer obligations should apply
[[Page 20356]]
regardless of whether the host actually operates the installation''
(Ex. 0162). MYR thought that ``[s]erious and inequitable problems could
arise from failure to apply the proposed rule requirements on host
employers that own but do not operate their electric utility
installations'' (id.).
OSHA considered the record and concludes that the host employer
should be the employer that is in the best position to have information
on the design, operation, and condition of an electric power
generation, transmission, or distribution system. Based on this
principle, OSHA decided that an employer that controls how the system
is operated, such as switching procedures and load transfer, should not
be excluded from the host-contractor provisions. Depending on the type
of work practices used, such operational control could have a direct
impact on worker safety. For example, an employer that controls the
operation of an electric power generation, transmission, or
distribution system could institute new switching procedures without
informing contractors or coordinating the new procedures with
contractors (Ex. 0230). In addition, because an employer, to fall
within the proposed definition of ``host employer,'' needed to operate
and maintain the installation and hire the contractor, it would have
been possible under the proposal to have scenarios in which there was
no host employer, such as if one employer owned the installation (and
hired the contractor) and a different employer operated or maintained
the installation. This result could have undermined the information-
sharing requirements altogether.
The Agency is revising the definition of ``host employer'' to
include employers that operate installations or control procedures for
operation of installations without regard to whether the employer owns
the installation. In addition, OSHA is deleting the reference to
``maintenance'' in the final definition of ``host employer'' because
the Agency believes that an employer that only maintains an electric
power generation, transmission, or distribution system is unlikely to
have knowledge of the design, operation, and condition of the
installation; employers that perform such maintenance may be
contractors hired by an electric utility. (See, for example, Tr. 403,
1200-1201.) Maintenance contractors will need information from the
employer that operates or controls the operation of the installation,
as would any other contractor. The final rule states that an employer
that operates, or that controls the operating procedures for, an
electric power generation, transmission, or distribution installation
on which a contract employer is performing work covered by subpart V is
a host employer. A note to the definition of ``host employer'' provides
that OSHA will treat the electric utility or the owner of the
installation as the host employer if it operates or controls operating
procedures for the installation. If the electric utility or
installation owner neither operates nor controls operating procedures
for the installation, OSHA will treat the employer that the utility or
owner has contracted with to operate or control the operating
procedures for the installation as the host employer. In no case will
there be more than one host employer. (See the definition of ``host
employer'' in final Sec. 1926.968.)
The revised definition incorporates IBEW's recommendation that the
Agency focus on the entity that has control over the system. OSHA
believes any such entity is likely to have critical safety-related
information about the system. In addition, the revised language renders
Ms. O'Connor's comment moot; the revised language ensures that an
entity that is in a position to have information that affects the
safety of contractor employees will be identified as a host employer
under the final rule.\63\ Note that OSHA has added electric power
generation installations to the installations covered by the definition
of ``host employer'' in subpart V for consistency with the definition
of this term in Sec. 1910.269.
---------------------------------------------------------------------------
\63\ The definition of host employer in the final rule also
removes any confusion over whether a holding company that owns a
utility company's outstanding stock, which is a common practice, or
the electric utility itself ``owns'' the installation.
---------------------------------------------------------------------------
In addition, the definition in the final rule removes the criterion
that the host employer be the entity that hires the contractor. The
record indicates that various entities hire contractors to work on
electric power generation, transmission, and distribution
installations. For example, utility owners hire contractors to perform
maintenance (Ex. 0186; Tr. 403). In addition, some contractors
subcontract some of their work (Tr. 315-316, 1380-1381). Subcontractors
will be treated as ``contract employers'' under the final rule even
though the host does not hire them directly.\64\ The standard's
information-exchange requirements hinge on the need to exchange
information between the entity that operates or controls operating
procedures for the system and entities that are performing maintenance
or construction work on the system. The type of contractual
relationship that exists between the host employer and contract
employers does not change the need for this information exchange. OSHA
realizes that the final rule will require some employers to exchange
information with entities with which they have no direct contractual
relationship. These employers can either exchange information directly
with each other or can arrange to handle their information exchange
through contacts with entities that do have contractual relationships
with the other employer. For example, an electric utility transmitting
information to an employer under contract to perform work on the
installation could instruct (or contract for) that contractor to share
the same information with any subcontractors hired to perform work
under the contract. Ultimately, however, it is the host employer's
responsibility to ensure that whatever procedures it uses are adequate
to get the required information to all ``contract employers'' working
on the installation. Paragraph (c)(3) of final Sec. 1926.950
(discussed later in this section of the preamble) requires host
employers and contract employers to coordinate their work rules and
procedures; part of this coordination involves establishing appropriate
procedures for exchanging information in accordance with the host-
contractor provisions.
---------------------------------------------------------------------------
\64\ As explained later in this section of the preamble,
``contract employer'' is defined as: ``An employer, other than a
host employer, that performs work covered by subpart V of this part
under contract.''
---------------------------------------------------------------------------
The other issue involving coverage under the host-contractor
provisions pertains to line-clearance tree trimming. OSHA proposed to
exclude from the host-contractor requirements work done by line-
clearance tree trimmers who are not qualified employees. As discussed
earlier in this section of the preamble, line-clearance tree-trimming
work is covered by Sec. 1910.269. Paragraph (a)(1)(i)(E)(2) of
existing Sec. 1910.269 lists the paragraphs of that section that apply
to work performed by line-clearance tree trimmers who are not qualified
employees, and OSHA did not propose to add the host-contractor
provisions to that list.
By not proposing to modify existing Sec. 1910.269(a)(1)(i)(E)(2),
OSHA would not have applied the host-contractor provisions to line-
clearance tree-trimming operations performed by unqualified employees.
However, as long as qualified employees are using electrical protective
equipment, these employees would be permitted to come much closer to
energized parts than unqualified employees. The Agency believed that
qualified employees
[[Page 20357]]
performing line-clearance tree-trimming work in proximity to energized
lines and equipment face hazards similar to contract power line workers
and should receive similar protection.\65\
---------------------------------------------------------------------------
\65\ For a full discussion of why Sec. 1910.269 applies
different requirements to line-clearance tree-trimming operations
depending on whether they are performed by qualified or unqualified
employees, see the preamble to the 1994 Sec. 1910.269 final rule
(59 FR 4336).
---------------------------------------------------------------------------
OSHA requested comments on whether its proposed approach for
dealing with line-clearance tree-trimming work under the host-
contractor provisions unduly jeopardized employee safety and whether
any of the host-contactor provisions could reasonably be applied to
tree-trimming work performed by line-clearance tree trimmers who are
unqualified employees. Many commenters supported OSHA's proposal. (See,
for example, Exs. 0126, 0174, 0177, 0200, 0201, 0213, 0219, 0227.) For
instance, EEI agreed ``that line clearance tree-trimming contractors
should be excluded from the requirement,'' explaining: ``Host utilities
are usually not familiar with the hazards associated with trimming
trees and routinely rely on the expertise of the line clearance tree-
trimming contractors to perform that work in a manner which ensures the
safety of their employees'' (Ex. 0227). These comments were echoed by
ULCC, which ``commended'' OSHA's proposal to exclude work done by line-
clearance tree trimmers who ``do not work on or touch electric supply
lines'' from the host-contractor provisions (Ex. 0174). ULCC urged the
Agency to maintain this exclusion in the final rule, commenting:
[T]he wisdom of the exclusion is manifest: for, the rationale of
the proposed ``host-contractor'' provisions . . . is to apply the
utilities' expertise to utility contractors performing utilities'
typical work--in effect, to force down utilities' safety expertise
onto their electric-work contractors in order to raise the safety
experience rate of those contractors to the better safety rate of
the utilities who employ them. Such policy-driver for applying
``host-contractor'' to utility contractors performing electric
utility (i.e. lineman) ``qualified'' work, simply is inapplicable to
line clearance work: for, the utilities hire line clearance
contractors because line clearance contractors are arborists who are
specialists in vegetation management--precisely skills which the
utilities contract out because they typically do not have that
expertise in tree growth, tree trimming techniques, tree rigging,
tree removal, vegetation management, etc. In short, utilities simply
do not have the institutional expertise of line clearance tree
knowledge to develop and direct line clearance safety practices of
line clearance contractors via ``host-contractor'' provisions. . . .
So, the ``force-down'' premise of ``host-contractor'' simply does
not apply to line clearance. [Id.; emphasis included in original.]
Duke Energy commented that ``[t]here should be no expectation that
host employers provide information on tree-trimming hazards to line-
clearance tree trimming contractors,'' suggesting that ``[a]pplying the
host-contract employer provisions [in the context of line-clearance
tree trimming] will be very difficult'' (Ex. 0201).
Some commenters, however, advised against the proposed exclusion
and argued that all line-clearance tree trimmers should be covered by
the host-contractor provisions. (See, for example, Exs. 0162, 0186,
0230, 0234.) IBEW, for instance, commented:
Line-clearance tree-trimming work could, in some instances, be
affected by the host employer[']s operation of the system. Lockout/
Tagout procedures during service restoration are one example where
contractor employee safety could be jeopardized if line-clearance
tree-trimming contractors are excluded from all provisions of the
proposed host-contract employer provisions. At a minimum,
information regarding circuit conditions, changes in conditions, and
lockout/tagout applications should be communicated by the host
employer to the contractor employer. [Ex. 0230]
The Ohio Rural Electrical Cooperatives agreed, also suggesting that
all line-clearance tree trimmers be covered by the host-contractor
requirements. That organization explained that tree trimmers ``might
not need as much information as a line contractor but they still need
to know for sure which lines are energized, which are on single-shot
protection, etc.'' (Ex. 0186). Mr. Wilson Yancey of Quanta Services
noted that ``[w]hether an employee is qualified or not, hazards will
exist that are unique to the host employer'' (Ex. 0234). He believed
that the proposal to leave some line-clearance tree trimmers out of the
host-contractor requirements was ``not well-founded and might unduly
jeopardize employee safety'' (id.).
The Agency recognizes that line-clearance tree trimmers do not face
exactly the same hazards as line workers. However, the record indicates
that host employers have information that line-clearance tree trimmers
need so that they can perform their work safely (Ex. 0505; Tr. 642-643,
686-688, 775). For example, Mr. Mark Foster of Lucas Tree Experts
testified that line workers will generally inform tree crews that a
line is about to be reenergized (Tr. 642-643). In addition, ULCC's
posthearing brief indicated that ``line clearance tree trimmers
necessarily must rely upon information from utility representatives
that the line has been deenergized, isolated and grounded when those
procedures are appropriate'' and that the ``safety of line clearance
tree trimmers would be enhanced by . . . utilities being required, by
OSHA standard, to give [certain] information to line clearance tree
trimmers'' (Ex. 0502).
Not only do line-clearance tree trimmers need information from
utilities, but line-clearance tree trimming contractors often have
important safety information for utilities, for example, information
they discover in the course of work about hazardous conditions that
could affect utility employees. Such conditions can include downed
power lines, transformer problems, and insulator and pole issues (Tr.
665, 689-690, 787-788).
Upon considering the record, it has become apparent to OSHA that:
(1) There is a need for information exchange between host employers and
tree-trimming contractors and (2) the host-contractor provisions should
apply to all line-clearance tree trimming. Therefore, the Agency added
Sec. 1910.269(a)(3) to the list of paragraphs denoted in final Sec.
1910.269(a)(1)(i)(E)(2) to cover line-clearance tree-trimming
operations performed by line-clearance tree trimmers who are not
qualified employees.
As noted earlier, some commenters maintained that utilities hire
contractors for their expertise and knowledge about particular hazards
and rely on those contractors to use that expertise to protect their
(that is, the contractors') own employees. (See, for example, Exs.
0127, 0172, 0173, 0177, 0200, 0207, 0227.) For instance, Mr. Frank
Brockman with Farmers Rural Electric Cooperatives Corporation stated,
``We, as host employers, hire contractors to do specific jobs, often
that we do not have the knowledge, expertise, equipment or manpower to
accomplish.'' He maintained that ``[c]ontractors are responsible for
their employees' safety'' (Ex. 0173). SBA commented that ``the host is
usually not present at these worksites and often does not possess
expertise in the type of work being performed'' and noted that ``many
of the SERs questioned whether the host-contractor provisions are
appropriate for the electric power industry at all'' (Ex. 0207).
Some comments specifically addressed the issue of whether line-
clearance tree trimming firms should be covered by the host-contractor
provisions. For example, Consumers Energy stated, ``Host utilities are
usually not familiar with the hazards associated with trimming trees
and routinely rely
[[Page 20358]]
on the expertise of the line clearance tree-trimming contractors to
perform that work in a manner which ensures the safety of their
employees'' (Ex. 0177). In addition, TCIA stated:
OSHA makes the correct assertion that the utility must have a
shared expertise with the contractor in order to specify its safety
standards for the contractor to follow. In stark contrast, utilities
typically contract line clearance tree trimming because of their
lack of expertise in that subject. [Ex. 0200; emphasis included in
original]
OSHA recognizes that contractors may have specific expertise that
host employers do not have. However, the Agency does not believe that
this is a valid reason not to require the type of information exchange
required by the final rule. As noted earlier, electric utilities have
information about their systems that the contractors do not have. The
Agency also believes that contractors, especially those hired for
expertise in a particular area, have information about hazardous
conditions related to their work that host employers do not have (for
example, the dangers posed to the host employer's employees from
chippers and falling tree limbs). In addition, when one employer's
activities may endanger another employer's employees, the Agency
believes that it is essential for the two employers to coordinate their
activities to ensure that all employees are adequately protected. For
example, as noted later in this section of the preamble, it is
important for an electrical contractor to coordinate procedures for
deenergizing and grounding lines and equipment with the host employer.
Similarly, it is important for line-clearance tree trimming firms to
coordinate their work with host employers and to inform host employers
of hazardous conditions posed by the tree-trimming work to ensure that
the host employers' employees are not exposed to tree-trimming hazards
about which those employees have received no training.
OSHA proposed to define ``contract employer'' as ``[a]n employer
who performs work covered by subpart V of this part for a host
employer.'' OSHA did not receive any significant comment on this
definition. However, OSHA is revising the definition to include any
``work covered by subpart V of this part under contract'' rather than
just work ``for a host contractor.'' This revision correlates the
definition of ``contract employer'' with the revised definition of
``host employer,'' which no longer provides that an employer must
``hire'' another employer to be a host employer. This revision makes it
clear that an employer performing subpart V work under contract is
covered as a ``contract employer'' by the host-contractor provisions in
final paragraph (c) regardless of whether the entity for which the work
is being performed is the ``host employer'' or another ``contract
employer.'' Contract employers under the final rule may include
painting contractors, line-construction contractors, electrical
contractors, and any other contractors working on the construction of
electric power transmission and distribution lines. (For final Sec.
1910.269, contract employers will also include contractors working on
covered electric power generation installations, such as boiler-
maintenance contractors, conveyor-servicing contractors, and electrical
contractors.) The definition of ``contract employer'' does not include
contractors that might be present at a jobsite where some work
performed is covered by subpart V, but that are not performing covered
work.
Paragraph (c) of final Sec. 1926.950 contains requirements for the
transfer of information between host employers and contract employers.
In the proposal, OSHA entitled this paragraph ``Contractors.'' After
considering the comments received, the Agency concludes that the
proposed title does not reflect the true scope of the paragraph's
provisions. The title at final Sec. 1926.950(c) is being changed to
``Information transfer'' to more appropriately describe the
requirements contained in the paragraph.\66\ In addition, the final
rule does not include proposed Sec. 1926.950(c)(1)(ii), which would
have required host employers to report observed contract-employer-
related violations of this section to the contract employer.
Consequently, OSHA renumbered proposed paragraph (c)(1)(i) (and
subordinate paragraphs (c)(1)(i)(A) and (c)(1)(i)(B)) as final
paragraph (c)(1) (and subordinate paragraphs (c)(1)(i) through
(c)(1)(iv)).
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\66\ The title of this provision is ``Information transfer.''
However, throughout the rulemaking, the Agency and the regulated
community referred to the provision as the ``host-contractor
provision,'' as the provision contains information-transfer
requirements for host employers and contract employers. OSHA,
therefore, uses the terms ``information-transfer provision'' and
``host-contractor provision'' interchangeably when referring to this
provision.
---------------------------------------------------------------------------
Proposed paragraph (c)(1)(i) required host employers to provide
certain information to contract employers. Paragraph (c)(1)(i)(A), as
proposed, required host employers to provide contractors with
information about ``[k]nown hazards that are covered by this section,
that are related to the contract employer's work, and that might not be
recognized by the contract employer or its employees.'' The purpose of
this provision was to ensure that contractors could take measures to
protect their employees from hazards posed by hosts' workplaces.
Although this proposed provision would not require hosts to inform
contract employers of hazards that contract employees are expected to
recognize, such as hazards posed by an overhead power line, the
proposal provided that hosts inform contract employers of hazards known
to the hosts that might not be recognized by the contractors. For
example, if a host employer knew that a particular manhole on its
system was subject to periodic contamination from a nearby fuel tank,
the host was to share this information with the contractor.
OSHA received considerable feedback on this proposed requirement.
(See, for example, Exs. 0146, 0159, 0160, 0167, 0175, 0178, 0186, 0201,
0227, 0234, 0480, 0505; Tr. 1333-1334.) Some commenters agreed with the
proposal to require host employers to inform contractors of known
hazards. (See, for example, Exs. 0167, 0169, 0234; Tr. 1333-1334.) For
example, the Iowa Association of Electric Cooperatives commented that
its members supported proposed paragraph (c)(1)(i)(A), explaining that
``[i]t is . . . common practice for Iowa's cooperatives to inform their
contract employers of hazards that are related to the contract
employer's work that might not be recognized by the contract employer
or its employees'' (Ex. 0167).
However, most of the comments on this provision objected to the
proposed language. The most common complaint was that the proposed
language was too broad or vague. (See, for example, Exs. 0146, 0175,
0178, 0201, 0227.) For instance, EEI commented:
This proposal is impermissibly vague because it fails to provide
adequate notice of what would constitute compliance. See, e.g., Ga.
Pac. Corp., v. OSHRC, 25 F.3d 999 (11th Cir. 1994). For example,
what are hazards ``that are covered by this section?'' Considering
that the proposed standards incorporate the requirements of many
standards other than those addressed in the proposal, would host
employers be required to inform contractors of known hazards
addressed by all potentially applicable standards? Even if the term
is confined to the standards under consideration here, this is a
vastly overbroad requirement.
Next, what is the test for determining the hazards that are
``related'' to the contractor's work? Further, on what objective
basis is a host employer to determine which hazards might not be
recognized by the contract employer or its employees? Does this mean
that the host must be sufficiently familiar with the training of a
specialty contractors' employees to allow an intelligent assessment
[[Page 20359]]
of what hazards those employees ``might'' or ``might not''
recognize? What will be the penalty for mis-evaluating these
possibilities, if made in good faith?
Indeed, what are ``hazards'' for purposes of this rule? Are they
limited to conditions and practices that pose a significant risk of
injury to employees, and would the likelihood of occurrence and
degree of gravity make a difference? Similarly, what are ``known''
hazards? Are they hazards that the host employer actually knows of,
or are they hazards that a host employer should have known through
the exercise of reasonable diligence? Does actual knowledge for this
purpose mean knowledge of any hazard that can be discerned by
searching a company's records--a daunting test for an electric
utility that may have decades of records related to work on
transmission and distribution facilities that cover literally
thousands of square miles--or is a more realistic test to be
applied? If so, what is it? [Ex. 0227]
Mr. James Shill with ElectriCities similarly commented that the
proposed provision would `require ElectriCities' members to take into
account every section of the OSHA standards, as well as others
incorporated by reference, and make a `guess' as to all of the
potential hazards a contractor may be unable or unwilling to
`recognize' (Ex. 0178). Ms. Salud Layton with the Virginia, Maryland &
Delaware Association of Electric Cooperatives argued that ``[t]he
phrase `might not be recognized by the contract employer or its
employees' is too broad'' and suggested that the proposed paragraph be
revised to ``specifically state the items that must be provided by the
host employer to the contract employer'' (Ex. 0175).
Some commenters proposed new language for this provision. (See, for
example, Exs. 0201, 0227, 0505.) For instance, EEI suggested:
[T]he final rules should be limited to requiring that a host
employer notify a contractor of a hazard where: (1) The host
employer has actual knowledge: (a) That the hazard is present, and
(b) that the contractors' employees are likely to encounter the
hazard in performing the work for which the contractor is engaged;
(2) given its known expertise, the contractor cannot reasonably be
expected to recognize the hazard; and (3) for this purpose, the
``hazard'' is a condition or practice that poses a significant risk
of death or serious physical harm to the contractor's employees. The
standard should also make clear that the host employer is not
obligated to evaluate each job assigned to a contractor to determine
whether such hazards are presented. [Ex. 0227]
IBEW, although generally supporting this and the other proposed
host-contractor requirements, also suggested changes to paragraph
(c)(1)(i)(A). The union proposed:
The host employer shall inform the contract employer of . . .
existing or reasonably anticipated hazards covered by this
subsection (i) of which the host employer is aware, (ii) that are
related to the contract employer's work, and (iii) that are
sufficiently unique to the host employer's operations or premises
that the contract employer or its employees would not, through the
exercise of reasonable care, be expected to recognize. [Ex. 0505]
Mr. Donald Hartley with IBEW explained:
It is important . . . to require the host employer to disclose
hazardous conditions that it knows actually exist and that it
reasonably anticipates may exist. The point here is to include
hazards that may exist intermittently: for example, switching surges
or environmental conditions or only under certain circumstances
that, when they occur, affect the workplace safety.
Second, the focus of the information disclosure should be on
information that is sufficiently unique to the host's workplace or
operations that the contract employer cannot be expected to know
without the input from the host employer. A contractor may be unable
to identify hazards not only because it lacks the technical
expertise, but for the very basic reason that it is unfamiliar with
the unique features of the host's operation or workplace
environment. Again, environmental conditions or specific operating
procedures are examples of this.
Finally, we believe that host employers should be required to
disclose any hazards that threaten contractor employees with any
illness or injury, not just death or the most serious of physical
harm. [Tr. 879-880]
OSHA considered the comments on proposed paragraph (c)(1)(i)(A) and
continues to believe that the final rule should include a requirement
for host employers to convey certain information to contractors that
will bear on the contractor's ability to ensure the safety of its
employees. Much of the opposition to this provision was to the specific
language in the proposal, not to the general principle that utilities
have safety-related information that should be shared with contractors.
OSHA is sensitive to the concerns of commenters who noted that the
proposed language was overbroad or unclear. Therefore, OSHA revised the
final rule to more clearly define the information host employers must
provide to contractors. The Agency is linking the information-transfer
requirements, in part, to the requirement in final Sec. 1926.950(d)
for determining existing conditions. (Paragraph (d), discussed later in
this section of the preamble, is essentially the same as existing Sec.
1910.269(a)(3).) In the final rule, Sec. 1926.950(d) requires a
determination of the existing characteristics and conditions of
electric lines and equipment related to the safety of the work. The
examples of ``existing conditions'' that were listed in proposed
paragraph (d) have been separately numbered in final paragraph (d). The
first five items of information listed in final paragraph (d) are
``characteristics'' of the electric power installation. The remaining
three items of information listed in final paragraph (d) are
``conditions'' at those installations. Therefore, paragraphs (c)(1)(i)
and (c)(1)(ii) of the host-contractor provisions in the final rule
refer to (and require the sharing of) information about the
characteristics and conditions specifically listed in final paragraph
(d) that are related to the safety of the work to be performed.
Contract employers may request from the host employer information
they need to protect their employees, in addition to the information
that host employers must provide under final paragraphs (c)(1)(i)
through (c)(1)(iii).\67\ Thus, final paragraph (c)(1)(iv) requires host
employers to provide contractors with information about the design or
operation of the host employer's installation that is known by the host
employer, that the contract employer requests, and that is related to
the protection of the contract employer's employees.
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\67\ Final paragraph (c)(1)(iii), discussed later in this
section of the preamble, requires host employers to provide
contractors with information about the design and operation of the
host employer's installation that the contract employer needs to
make the assessments required by subpart V.
---------------------------------------------------------------------------
As already noted, OSHA decided to adopt language in paragraphs
(c)(1)(i) and (c)(1)(ii) in the final rule that more clearly specifies
the information that host employers must provide to contractors and
does so by using language that is familiar to employers complying with
existing Sec. 1910.269.\68\ Paragraph (d), discussed later in this
section of the preamble, lists specific characteristics and conditions
of electric lines and equipment that must be determined before work on
or near electric lines or equipment is started when these
characteristics and conditions are related to the safety of the work to
be performed. These characteristics and conditions include the nominal
voltages of lines and
[[Page 20360]]
equipment, maximum switching transient voltages, the presence and
condition of protective grounds and equipment grounding conductors, and
the condition of poles. Host employers are the parties that possess
much of this information, and it would be difficult in many cases (and
impossible in others) for contract employers to determine these
conditions and comply with paragraph (d) without getting the necessary
information from the host employer.
---------------------------------------------------------------------------
\68\ It should be noted that, in revising the language of this
provision in the final rule, OSHA did not conclude that the proposed
language was overbroad or too vague. Similar language is used in
other OSHA standards, including the standard for process safety
management of highly hazardous chemicals (see Sec.
1910.119(h)(2)(ii)). The Agency believes that employers subject to
that rule are successfully complying with it. However, OSHA is
revising the language of this provision in Subpart V because it
resolves rulemaking participants' concerns about the proposed
provision in a manner that adequately protects employees and is more
consistent with existing requirements for electric power generation,
transmission, and distribution work in Sec. 1910.269.
---------------------------------------------------------------------------
For example, an electrical contractor might be able to make a
reasonable estimate of the nominal voltage on a line through
examination of the equipment. However, having the host employer provide
that information to the contractor eliminates guesswork and the hazards
associated with inaccurate estimates.
Similarly, contractors will usually be unable to determine the
maximum switching transient overvoltages on a power line without
information from the host employer. The maximum per-unit transient
overvoltage determines the minimum approach distance for workers to
maintain from exposed, energized parts (see the discussion of this
issue under the summary and explanation of final Sec. 1926.960(c)(1)
later in this section of the preamble). Without this information from
the host, a contractor might not adhere to the proper minimum approach
distance and, as a result, a power line worker might come too close to
the power line and be at risk of serious injury from electric shock and
burns.
Paragraph (c)(1)(i) of the final rule provides that, before work
begins, the host employer must inform the contractor of the
characteristics of the host employer's installation that are related to
the safety of the work to be performed and are listed in paragraphs
(d)(1) through (d)(5). These characteristics are: the nominal voltages
of lines and equipment, the maximum switching-transient voltages, the
presence of hazardous induced voltages, the presence of protective
grounds and equipment grounding conductors, and the locations of
circuits and equipment, including electric supply and communication
lines and fire-protective signaling circuits.\69\ OSHA presumes that
host employers have this information because they typically need it for
the design and operation of an electric power generation, transmission,
or distribution system. A note to final paragraph (c)(1)(i) explains
that in an unusual case in which the host employer does not have this
information in existing records, it must obtain the information for
purposes of complying with paragraph (c)(1)(i).
---------------------------------------------------------------------------
\69\ In final Sec. 1926.950(d)(5), OSHA changed the proposed
term ``power . . . lines'' to ``electric supply . . . lines.'' The
two terms are synonymous, and the final rule defines ``electric
supply lines'' in Sec. 1926.968. Note that lines that employees
encounter are either electric supply lines, communication lines, or
control lines, such as those on fire-protective signaling circuits.
---------------------------------------------------------------------------
Paragraph (c)(1)(ii) of the final rule requires that, before work
begins, the host employer inform the contract employer of the
conditions of the host employer's installation that are related to the
safety of the work to be performed, that are listed in final paragraphs
(d)(6) through (d)(8), and that are known to the host employer. These
conditions are: the condition of protective grounds and equipment
grounding conductors, the condition of poles, and environmental
conditions relating to safety. Final paragraph (c)(1)(ii) only requires
host employers to provide known information to contractors. Host
employers gain information on the condition of their electric power
generation, transmission, and distribution systems through normal
preventive-maintenance inspections; and, if host employers find
conditions listed in final paragraphs (d)(6) through (d)(8) and related
to the safety of work to be performed by a contractor during such
inspections, the host employer must pass that information to the
contract employer under final paragraph (c)(1)(ii). For example, if a
utility conducts a wood-pole inspection program and finds several poles
that are structurally unsound and that need replacement, this
information must be imparted to a contractor whose work involves the
affected poles. However, this paragraph only requires the host employer
to provide information that the host can obtain from existing records
through the exercise of reasonable diligence; this provision does not
require host employers to conduct inspections to identify these
conditions. To make this clear in the final rule, OSHA included a note
following paragraph (c)(1)(ii) clarifying that, for the purposes of
that paragraph, the host employer does not have to inspect of worksite
conditions or otherwise get information that it cannot obtain through a
reasonably diligent search of its existing records.
OSHA believes that the revised language in paragraphs (c)(1)(i) and
(c)(1)(ii) of the final rule addresses the concerns expressed by
commenters, such as ElectriCities and EEI, about the clarity and scope
of proposed paragraph (c)(1)(i)(A). The provision no longer requires
host employers to determine whether a hazard exists or whether
contractors might be expected to recognize particular hazards.
Under final paragraph (c)(1)(iv), before work begins, a host
employer must provide additional information about the design or
operation of the installation, but only if that information (1) is
known by the host employer, (2) is requested by the contract employer,
and (3) is related to the protection of the contract employer's
employees. A note to final paragraph (c)(1)(iv) clarifies that, for
purposes of complying with that paragraph, the host employer is not
required to make inspections or otherwise get information that it
cannot obtain through a reasonably diligent search of its existing
records.
IBEW commented that, ``[i]n addition to the information about
`existing conditions' needed to perform the hazard analysis, there may
be other information unique to the host's operations or premises that
the contractor employer needs to ensure the safety of its employees''
(Ex. 0505). The union identified ``schedules of other crews that may be
working on the same circuits or equipment, anticipated operational
changes, and the potential impact of unique localized climatic,
environmental or geological conditions'' as examples of such
information (id.). Details about the scheduling of outages is another
example of information a contractor might need to obtain from the host
employer before employees start work.
OSHA is not explicitly requiring host employers to provide this
other type of information to contractors. The Agency believes that,
although information such as the scheduling of crews may prove useful
in some situations, it is not always essential to ensure the safety of
employees. When a contractor needs this information to protect its
employees, the contractor may request this type of information under
final paragraph (c)(1)(iv). In addition, OSHA believes that host
employers and contract employers will exchange this type of information
in their efforts to comply with other provisions in final paragraph
(c). For example, when host and contractor crews will be working
together or on the same circuit, OSHA intends for both employers to
exchange crew-scheduling information when necessary to comply with
final paragraph (c)(3) (discussed later in this section of the
preamble), which requires the contract employer and the host employer
to coordinate their work rules and procedures to ensure that employees
are protected as required by subpart V.
As a general matter, OSHA does not believe that the information
host
[[Page 20361]]
employers must share with contract employers under final paragraph
(c)(1)(iv) is likely to contain proprietary information or trade
secrets. OSHA recognizes, however, that an unusual case could arise
presenting issues related to trade secrets. In any such case, OSHA
expects that the host employer will find a way to provide the necessary
information to the contract employer without divulging trade secrets or
will share the information with the contract employer pursuant to an
appropriate confidentiality agreement.
Southern Company expressed concern that contractors and their
employees might rely on the information provided by the utility in lieu
of doing a thorough job briefing as required by final Sec. 1926.952
(Ex. 0212). Final Sec. 1926.950(c)(1)(i), which requires host
employers to provide information to contractors, does not replace the
contract employer's basic responsibility to conduct the job briefing
required by final Sec. 1926.952. The briefing will impart information,
including relevant information a contractor obtains from a host
employer, to the employees doing the work. The requirements in final
Sec. Sec. 1926.950(c)(1) and (d) and 1926.952 work in combination to
ensure that the employees performing the work are provided with
sufficient information to perform that work safely.
Proposed paragraph (c)(1)(i)(B) required host employers to provide
contract employers with information about the installation that the
contract employer would need to make the assessments required elsewhere
in Subpart V. EEI inquired as to who (the host or contract employer)
would be responsible for deciding what assessments the contractor must
make and whether the host would have to survey contractor work areas to
identify hazards that need assessment (Ex. 0227).
The language in final paragraph (c)(1)(iii) states explicitly that,
before work begins, the host employer must provide information that the
contract employer needs to perform the assessments. In addition, the
language from the proposal has been modified in the final rule to limit
the information the host employer must provide to ``[i]nformation about
the design and operation of the host employer's installation.'' Table 2
shows the assessments that are implicitly or explicitly required by
final subpart V and lists information that the Agency anticipates
contractors will need to perform the required assessments.
Table 2--Assessments Required by Subpart V
------------------------------------------------------------------------
Type of information
to be provided under
Provision Assessment required Sec.
1926.950(c)(1)(iii)
------------------------------------------------------------------------
Sec. 1926.953(a).......... Whether an enclosed Whether an enclosed
space must be space contains
entered as a permit- hazards, other than
required confined electrical and
space. atmospheric
hazards, that could
endanger the life
of an entrant or
could interfere
with escape from
the space.
Sec. 1926.953(m).......... Whether forced air The size of the
ventilation has enclosed space.
been maintained
long enough that a
safe atmosphere
exists.
Sec. 1926.960(c)(1)(i).... What is the What the operating
appropriate minimum conditions are for
approach distance the value of the
for the work to be maximum transient
performed. overvoltage
provided to the
contract
employer.\1\
Sec. 1926.960(g)(1)....... Whether employees Information on
are exposed to electric equipment,
hazards from flames such as safety
or electric arcs. information
provided by
manufacturers, that
relates to the
required hazard
assessment.
Sec. 1926.960(g)(2)....... What is the The electrical
estimated incident parameters needed
energy from an to calculate
electric arc. incident energy,
such as maximum
fault current, bus
spacings, and
clearing times.
Sec. 1926.960(k).......... Whether devices are Load current for,
designed to open or and the opening and
close circuits closing ratings of,
under load devices used to
conditions. open and close
circuits under
load.
Sec. Sec. 1926.961 and What are the known All known sources of
1926.967(h). sources of electric electric energy,
energy (including including known
known sources of sources of
backfeed) supplying backfeed.
electric circuits.
Sec. 1926.962(d)(1)(i).... Whether protective The maximum fault
grounds have current and
adequate current- clearing time for
carrying capacity. the circuit.
Sec. 1926.962(g).......... Whether there is a Potential rise on
possibility of remote grounds
hazardous transfer under fault
of potential should conditions.
a fault occur.
Sec. 1926.964(a)(2)....... Whether overhead The design strength
structures such as of the pole or
poles and towers structure.
are capable of
sustaining stresses
imposed by the work.
------------------------------------------------------------------------
\1\ Includes information on conditions that must be in place for the
maximum transient overvoltage to be valid, such as whether circuit
reclosing devices are disabled.
In specific cases, contractors may need information that is
somewhat different from that described in Table 2. OSHA expects that
contractors will inform host employers if they need additional
information, and that information must be provided to the extent the
host employer is required to provide it by final paragraph (c)(1)(iii).
In addition, the Agency does not expect host employers to provide
contractors with information in the table if the contractor informs the
host that the information is not needed.
EEI questioned whether the proposed provision was limited to
information actually known by the host employer (Ex. 0227). OSHA
expects that the host employer will usually have, in existing records,
information about the design and operation of its installation that the
contract employer will need to make required assessments. OSHA presumes
that host employers know their electric power generation, transmission,
or distribution installations and know their systems' nominal system
and operating voltages, available fault currents, relay protection
schemes, anticipated relay clearing times, and switching schedules. As
IBEW noted, this is information ``that the host employer should have
for basic operational purposes and that is
[[Page 20362]]
generally solely in the host's possession'' (Ex. 0505). In addition,
electric utilities will also need to have this information to perform
their own required assessments when their employees are performing work
on the utilities' installations. However, the record also indicates
that, in some unusual circumstances, electric utilities do not have
basic information about their system readily available. (See Mr. Brian
Erga's testimony regarding a nuclear power plant that did not know its
available fault current, Tr. 1241-1242.) In such cases, the final rule
requires the host employer to ascertain the information and provide it
to its contractor so that the contractor can conduct the required
assessments. A note to final paragraph (c)(1)(iii) clarifies that, in
any situation in which the host does not have such information in
existing records, it must obtain the information and provide it to the
contract employer to comply with paragraph (c)(1)(iii).\70\
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\70\ The preamble to the proposal indicated that proposed
paragraph (c)(1)(i) would not require host employers to provide
``unknown information'' to contractors (70 FR 34840). It should be
noted, however, that OSHA presumes that host employers ``know'' the
information that must be shared under final paragraphs (c)(1)(i) and
(c)(1)(iii) because it relates to the design and operation of the
installation, which are aspects of an electric power generation,
transmission, or distribution system that are under the exclusive
purview of the host employer.
---------------------------------------------------------------------------
Mr. Steven Theis of MYR Group recommended that the final rule
require hosts and contractors to perform joint hazard analyses (Tr.
1334).
The final rule neither requires nor prohibits such joint
assessments. Even if employers do not conduct a joint hazard analysis,
the information exchange required by final paragraph (c)(1) of the
final rule will be part of a two-way conversation between host
employers and contract employers. As discussed later in this section of
the preamble, final paragraph (c)(3) requires hosts and contractors to
coordinate their work rules and procedures to ensure that employees are
protected as required by subpart V. To comply with the final rule, the
contractor, as part of this effort, must communicate with the host
about the information the contractor needs about the host's
installation.
OSHA notes that final paragraph (c)(1) does not require the host
employer to report any information to the contract employer in writing;
the Agency will deem it sufficient for the host employer to provide the
necessary information, through any appropriate mechanism (for example,
a phone call or an email), to an authorized agent of the contractor.
Proposed paragraph (c)(1)(ii) would have required the host employer
to report observed contract-employer-related violations of subpart V to
contract employers. OSHA included this provision in the proposal
because the Agency believed that host employers occasionally observe
contractor employees performing work under the contract and that it was
important for the host employer to inform the contract employer of
observed violations so that the contractor could correct them and
prevent them from occurring in the future.
OSHA received many comments on this proposed requirement. (See, for
example, Exs. 0128, 0152, 0160, 0167, 0169, 0170, 0171, 0178, 0183,
0186, 0201, 0222, 0227, 0235, 0505; Tr. 880-882.) IBEW supported the
need for a reporting requirement, explaining:
[T]he point is that if in performing its usual functions the
host observes contract employees exposed to hazards, it must report
those observations to their contract employer. This requirement is
particularly important in the electrical industry where contract
employees are potentially exposed to extremely serious hazards.
If the host employer who knows the worksite's hazards and the
potential for harm sees a contract employee exposed to those
conditions the host knows to be hazardous, it is unconscionable for
the host to walk away. The host must report that information to the
contract employer so the contract employer can take the steps
necessary to eliminate the unsafe condition, and the contract
employer must report back what action it actually took . . . [Tr.
881].
Many commenters objected to the proposed reporting requirement,
however. (See, for example, Exs. 0128, 0152, 0167, 0170, 0178, 0183,
0186, 0222, 0227.) Some expressed concerns about putting host employers
in an enforcement role and requiring them to make determinations about
whether an OSHA violation exists. (See, for example, Exs. 0128, 0152,
0170, 0178, 0183, 0222, 0227.) For instance, EEI commented:
The proposal would require a host employer to report observed
contract-employer-related violations of the standard to the contract
employer.
* * * * *
Typically, utility employees and managers are not trained ``in
the requirements of'' OSHA standards.'' [sic] Rather . . . they are
trained in the requirements of their own employer's safety rules. .
. . There simply are no requirements that any employee know what
OSHA standards require--only that behavior and work practices be in
compliance with standards. Employees are entitled, however, to
assume that if they comply with their employer's safety rules, they
will comply with OSHA standards. . . . Indeed, among EEI members,
the requirements of safety rules often exceed the minimum
requirements of OSHA standards.
Clearly, the proposed requirement would create confusion.
Utility representatives may believe they are seeing OSHA violations,
but in fact may observe that contractors are not performing as the
utility's internal safety rules require. [T]he proposal would
effectively place utility personnel in the role of surrogate
Compliance Officers. They are not trained or qualified to perform
such a function. [Ex. 0227; emphasis included in original]
Mr. Alan Blackmon with the Blue Ridge Electric Cooperative
suggested that, ``[b]y requiring the [host] employer to report on the
violation of a federal rule, the proposal in a sense deputizes the
employer as an OSHA inspector, a role for which employers have no
training and no experience'' (Ex. 0183). Mr. Chris Tampio of the
National Association of Manufacturers argued that, by requiring hosts
to report observed violations, OSHA ``would inappropriately force a
host employer to make a legal determination as to whether the
contractor has committed a violation of the OSH Act'' (Ex. 0222).
EEI was also concerned that host employers would be cited for
failing to report violations that were present, but not recognized by,
the host's employees, commenting:
The proposal provides no guidance as to the kinds of observation
that would trigger a notification requirement. For example,
[utilities commonly] engage inspectors . . . to observe contractors'
performance. In other situations, this is performed by a utility's
own foremen or supervisors. Such inspections often are aimed at
assuring that the work is performed accurately and in timely
fashion, and observation of safety performance, while important, may
not be the main or only focus. If a utility inspector is found to
have had the opportunity to observe a contractor's violative
behavior but did not understand or appreciate what he saw and failed
to report it, would the host be cited? [Ex. 0227]
Similarly, Duke Energy commented: ``Host employers may have a variety
of employees observing contract operations for reasons unrelated to
safety. They may be observing contract operations for quality,
schedule, productivity, or cost purposes. A host employee may `observe'
a condition, but not recognize it as a violation of this OSHA
regulation'' (Ex. 0201).
Some commenters presumed that the proposal required host employers
to either actively monitor contractors or take measures to ensure that
reported hazards were abated. (See, for example, Exs. 0187, 0225, 0235,
0238, 0504.) For instance, Mr. James Strange with American Public Power
Association (APPA) commented that municipal
[[Page 20363]]
utilities ``do not have the personnel to shadow contractors on each
utility job site to assure that they are working according to OSHA
rules'' (Ex. 0238). In addition, several commenters argued that the
proposal would create an adversarial relationship between hosts and
contractors. (See, for example, Exs. 0169, 0171, 0183.) Mr. Wilson
Yancey expressed this argument as follows:
[T]he proposed requirements might create an unduly adversarial
relationship between the parties. For instance, the host employer
seeking to fulfill its perceived duties under the regulations would
thrust the host employer into the role of an investigator and rule-
enforcer, rather than a business partner seeking to achieve a common
goal of employee safety. [Ex. 0169]
After considering the comments received on this issue, OSHA decided
not to include proposed paragraph (c)(1)(ii) in the final rule. First,
the host employer, as defined in the final rule, may not be in position
to recognize, or even observe, hazardous conditions created by contract
employers. OSHA based the proposed rule on the premise that the host
employer would hire the contract employer and would perform some
maintenance on the system. As noted earlier, in the final rule, the
Agency adopted a definition of ``host employer'' that is designed to
capture the employer in the best position to provide information about
the electric power generation, transmission, or distribution
installation on which the contract employer is working. The definition
of ``host employer'' in the final rule does not require the host
employer to maintain the installation or to be the entity that hired
the contractor. A host employer that does not perform maintenance work
on the system would be unlikely to recognize hazardous conditions
created by contractors. In addition, a host employer that does not hire
the contract employer usually would not find itself in a position to
observe the contractor's employees working.\71\
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\71\ For example, a generation plant owner could contract with a
company to operate, but not maintain, the plant. If the plant owner
neither operates nor controls operating procedures for the
installation, the company it contracts with to operate the plant is
the host employer under the final rule. The plant owner could hire a
different company to perform maintenance in the substation in the
generation plant. Because the host employer in this scenario does
not perform maintenance, it is likely that the host employer will
not have any employees qualified to enter the substation, and, thus,
will not observe the maintenance contractor's employees.
---------------------------------------------------------------------------
Second, in some circumstances, the host employer will also be a
controlling employer under OSHA's multiemployer citation policy. A
controlling employer has an underlying duty to exercise reasonable care
to prevent and detect violations endangering contractor employees at
the worksite. (See CPL 02-00-124; see also OSHA's discussion of the
multiemployer citation policy earlier in this section of the preamble.)
This is a broader obligation than the one OSHA proposed for host
employers in proposed paragraph (c)(1)(ii); therefore, the proposed
requirement is not necessary with respect to hosts that are controlling
employers. (Whether a host employer is a controlling employer depends
on whether it has general supervisory authority over the worksite,
including the power to correct, or require others to correct, safety
and health violations.\72\) Indeed, the Agency is concerned that
including the proposed reporting requirement in the final rule would
lead host employers to believe they could fulfill their obligations as
controlling employers just by complying with the more limited
requirement in the standard.
---------------------------------------------------------------------------
\72\ Such control can be established by contract or by the
exercise of control in practice.
---------------------------------------------------------------------------
Although OSHA is not including proposed paragraph (c)(1)(ii) in the
final rule, the Agency expects that, in many situations, liability and
practical considerations will drive host employers that are not
controlling employers to notify the contractor if they observe
hazardous conditions involving the contractor's employees. Unsafe
conditions created by contractors can pose hazards to employees of the
host employer and to the public and can create additional obligations
for host employers to protect their employees (for example, through
OSHA standards and the general duty clause) and the public (for
example, through liability concerns) from those hazards. For instance,
a host employer that observes a contractor bypassing safety rules when
installing a new line will likely have concerns about the quality of
the contractor's work and about the effect of the contractor's unsafe
practices on the installation and on public safety. These concerns will
form a strong incentive for the host employer to report the hazardous
conditions to the contractor.
Although the Agency concluded, based on the current rulemaking
record, that the reporting requirement in proposed paragraph (c)(1)(ii)
is neither necessary nor appropriate for this final rule, the Agency
will continue to monitor this issue and evaluate whether regulatory
requirements like the one in proposed paragraph (c)(1)(ii) are
necessary to ensure the safety of employees under subpart V or other
OSHA standards.
Proposed paragraph (c)(2)(iii)(C) would have required the contract
employer to advise the host employer of measures taken to correct, and
prevent from recurring, violations reported by the host employer under
proposed paragraph (c)(1)(ii). In light of the Agency's decision not to
adopt proposed paragraph (c)(1)(ii), proposed paragraph (c)(2)(iii)(C)
is no longer meaningful and is not incorporated in the final rule.
In addition to proposing the requirement for hosts to report
observed contract-employer-related violations, OSHA requested comments
on the related, but distinct, issue of whether it should require host
employers to take appropriate measures to enforce contractual safety
requirements or review the contracts of contractors who fail to correct
violations.\73\
---------------------------------------------------------------------------
\73\ Contracts between electric utilities and their contractors
often contain provisions requiring contractors to meet OSHA
standards and other provisions addressing noncompliance with the
terms of the contract. (See, for example, Ex. 0175.)
---------------------------------------------------------------------------
IBEW was the only commenter that supported such requirements,
explaining:
The host employer should regularly review the safety performance
of a contractor while operating on its site. The host employer
should take necessary action to ensure contractual obligations are
being met. The rule should require the host employer to initiate
further action if the review finds non compliance. [Ex. 0230]
Rulemaking participants agreed that host employers regularly adopt
contracts that specify safety standards to which contractors must
adhere and that include provisions for enforcing those requirements.
(See, for example, Exs. 0163, 0175, 0213, 0405; Tr. 1386-1387.) Also,
some commenters recognized a general need for hosts to evaluate the
safety performance of contractors. (See, for example, Exs. 0167, 0175,
0184, 0213, 0219.) However, none of these rulemaking participants
supported the adoption of OSHA requirements related to the enforcement,
review, or awarding of contracts.
For example, Ms. Susan O'Connor with Siemens Power Generation
explained:
While host employers often [require and enforce compliance with
OSHA standards], in practice it would be burdensome [on] the host
employer to require them, at the risk of OSHA sanctions, to enforce
contract provisions as a regulatory matter. Indeed, establishing
this as a regulatory standard could operate as a disincentive for
host employers to establish sound health and safety contractual
terms with contractors,
[[Page 20364]]
particularly terms which go beyond regulatory requirements. . . . In
addition, OSHA regulations are promulgated and undergo public
review; Host Employer requirements do not go through such a
regulatory review process and therefore must not be held on par with
OSHA regulations. Host employers have a right to establish site
safety requirements that are more stringent than the law requires;
however, they should have the right to deal with contractors who do
not comply individually and in their own manner. But they must
currently do this against the backdrop of specific OSHA standards,
and the OSHA Multi-employer Workplace policy. Siemens sees no reason
to change this.
* * * * *
OSHA should not prescribe how contractors are selected or
prescribe how contractors must be evaluated for purposes of
contracting work or terminating work. It is up to the discretion of
the party contracting for the services to make those determinations.
Host employers should have the discretion to choose, to dismiss, or
continue utilizing contractors. Given the already comprehensive and
pervasive nature of health and safety regulation through OSHA and
the states, as well as considerations of tort law, the effects of
the marketplace will weed out contractors that are repeatedly
substandard from a safety standpoint, as well as those that are
chronically poor perform[ers] from a quality, delivery, or other
standpoint. Contractors should be answerable to the host employe[r]
for business matters, and the agency for regulatory matters. These
lines should not be blurred by attempting to make the host employer
responsible for both. As a practical matter, it would be impossible
for OSHA . . . to come up with minimum requirements for every
contract activity, to establish an ``acceptable'' versus
``unacceptable'' contractor. [Ex. 0163]
Duke Energy commented:
The only safety performance that OSHA has authority to regulate
is compliance with OSHA rules. Worker Compensation Insurance
Carriers and others review safety performance. There is no need for
OSHA to impose additional requirements. Each host employer is faced
with a unique set of available contractors, each with its own safety
record. Some may excel in one area and perform poorly in another.
Some host employers may have such a limited pool of available
contractors that requiring some pre-determined level of contractor
safety performance would eliminate all contractors. Other goals,
such as employing minority firms may cause hosts to work with poor
performers to improve their performance, rather than eliminating the
minority contractor with the poor record. OSHA should not interfere
in decisions such as these. [Ex. 0201]
In light of the comments received, OSHA decided not to adopt
provisions requiring host employers to enforce contractual safety
requirements, to review the contracts of contractors who fail to
correct violations or hazards, or to evaluate the safety performance of
contractors. As discussed previously, the host employer might not be
the entity that hired the contract employer, in which case the host
employer would not be in position to enforce contract requirements or
be involved in awarding contracts to the contract employer. In
addition, as Ms. O'Connor pointed out, and as noted earlier in this
section of the preamble, host employers that have supervisory authority
over a contractor's worksite are subject to a background statutory
obligation, as set forth in OSHA's multiemployer citation policy, to
exercise reasonable care to detect and prevent violations affecting
contractor employees. Moreover, for the reasons stated previously, OSHA
believes that, even in the absence of a specific requirement in subpart
V, host employers that are not controlling employers have strong
incentives to take measures to ensure safe contractor performance. In
addition, the Agency believes that contractors with poor safety
performance are likely to have similarly poor records with respect to
the quality of their work, making it less likely that host employers
will hire them. Therefore, the final rule does not contain provisions
related to the enforcement, review, or awarding of contracts.
Paragraph (c)(2) of final Sec. 1926.950 addresses the
responsibilities of the contract employer. Final paragraph (c)(2)(i)
requires the contract employer to ensure that each of its employees is
instructed in any hazardous conditions relevant to the employee's work
of which the contractor is aware as a result of information
communicated to the contractor by the host employer as required by
final paragraph (c)(1). This paragraph ensures that information on
hazards the employees might face is conveyed to those employees. The
information provided by the host employer under paragraph (c)(1) is
essential to the safety of employees performing the work, especially
because it may include information related to hazardous conditions that
the contract employees might not identify or recognize.
Proposed paragraph (c)(2)(i) was worded differently from the final
rule; the proposed paragraph required contractors to instruct their
employees in hazards communicated by the host employer. OSHA received
no comments on this proposed provision. However, changes were made to
this paragraph in the final rule to mirror the changes made to
paragraph (c)(1) (described earlier). In the final rule, the Agency did
not include the note to proposed paragraph (c)(2)(i) because OSHA
believes that the note was confusing. The proposed note suggested that
the instruction required under paragraph (c)(2)(i) was not part of the
training required under Sec. 1926.950(b). The contractors' employees
will already be trained in many of the hazards that are related to the
information the contractor receives from the host, and the final rule
does not require employers to duplicate this training. Contractors will
need to supplement an employee's training only when that employee will
be exposed to a hazard or will follow safety-related work practices
with respect to which he or she has not already been trained.
Paragraph (c)(2)(ii), as proposed, required the contract employer
to ensure that its employees followed the work practices required by
subpart V, as well as safety-related work rules imposed by the host
employer. In proposing this provision, OSHA explained that a host
employer's safety-related work rules are almost certain to impact the
safety and health of the contractor's employees (70 FR 34840). For
example, electric utilities typically require contractors to follow the
utilities' procedures for deenergizing electric circuits. If the
contract employer's employees do not follow these procedures, a circuit
the contractor's employees are working on might not be properly
deenergized, endangering the contractor's employees, or a circuit the
contractor was not working on might become reenergized, endangering any
host employer's employees that might be working on that circuit.
OSHA invited comments on whether requiring a contractor to follow a
host employer's safety-related work rules could make work more
hazardous. A few commenters supported proposed paragraph (c)(2)(ii).
(See, for example, Exs. 0164, 0213.) For instance, Mr. Tommy Lucas of
TVA commented:
The proposed requirement is supported. Regardless whether this
requirement is carried forward, we will require contractors to
follow certain host-employer safety rules contractually, such as the
lockout/tagout (LOTO) procedure. Failure to follow the LOTO
procedure could result in host or contractor employees being
seriously injured. [Ex. 0213]
In contrast, the vast majority of rulemaking participants opposed
the proposed provision. (See, for example, Exs. 0156, 0161, 0162, 0168,
0183, 0201, 0202, 0212, 0220, 0222, 0227, 0233, 0237, 0501; Tr. 1323,
1333.) These commenters gave several reasons for objecting to this
proposed requirement:
It could result in the implementation of inadequately safe
work rules, such as when the contractor has more protective work rules
than the
[[Page 20365]]
host (see, for example, Ex. 0161) or when the host's work rules may be
based on its own employees' working conditions that are less hazardous
than the working conditions to which contractor employees will be
exposed (see, for example, Ex. 0233).
It could cause contract employees to be confused about
proper work methods if rules change from contract to contract (see, for
example, Ex. 0227).
It would result in contractual requirements becoming
enforceable OSHA standards in a way that constitutes an illegal
delegation of OSHA's rulemaking authority, thereby circumventing proper
rulemaking procedures (see, for example, Ex. 0237).
It would place OSHA in the position of having to interpret
and enforce third-party contracts (see, for example, Ex. 0233).
It could increase disaster-response time (Ex. 0233).
It would increase costs and administrative burdens on
contract employers (see, for example, Ex. 0162).
It could result in contractors having to follow host
employer work rules that are not directly linked to employee safety,
for example, in a situation in which the host's rules approve only one
vendor for safety equipment when equivalent, equally protective,
equipment is available from other vendors (Ex. 0162).
For instance, Mr. Steven Theis with MYR Group commented:
MYR Group believes that requiring a contractor to follow a
host's safety rules would create hazards. Contractors are required
by the standard to have appropriate work rules and policies for
compliance. Requiring them to follow another employer's policies--
which they are unfamiliar with and untrained on--would either result
in accidents or add undue and unnecessary time for retraining and
familiarization with the policies when the contractor has its own
policy . . . Indeed, MYR Group has experienced situations where host
employers impose work rules that do not significantly affect
employee safety and may even create an unsafe situation. [H]ost work
rules can specify chain of command requirements that do not align
with contractor management structure or responsibility and thus
following host requirements could result in loss or miscommunication
of safety information or safe work directives. Accordingly, MYR
Group respectfully submits that the requirement to follow host
employer work rules should be deleted. [Ex. 0162]
Mr. Terry Williams with the Electric Cooperatives of South Carolina
agreed and provided an example of how following a host employer's
safety rules could jeopardize worker safety:
The proposal ignores the fact that contractors have developed
their own rules that are appropriate for the work they do. They
train on these rules and operate according to them all the time.
Requiring contractors . . . to work to the rules of others could
easily result in the contractor working less safely.
Consider the following actual situation: an electric utility
that is primarily a 12kV system, with some 34.5kV. The utility uses
its own crews for the 12kV work, and uses a qualified contractor for
the 34.5kV work, as the need arises. The utility's safety rules
specify use of Class 2 gloves, sleeves and cover up for all work, as
that is all their line crews need. For the 34.5 kV work, the
contractor should use Class 4 equipment, yet OSHA's proposal could
justify use of Class 2, with unsafe results.
OSHA should retract this proposal and allow host employers to
require contractors to work to appropriate safety rules. [Ex. 0202]
EEI made similar comments in its posthearing brief:
[T]he standard would require contractors to utilize different
safe procedures depending upon the owner involved. For example, an
electric line contractor could be required to observe a ``ground-to-
ground'' rubber glove requirement while working for one electric
utility, but not while working for another utility nearby (Tr. 110-
11). The confusion and consequent increased risk to employees from
such requirements is obvious, not to mention the cost of training
for employees and supervisors alike. [Ex. 0501]
As to the legal arguments, Susan Howe with the Society of the
Plastics Industry suggested that ``OSHA's incorporation'' of the host
employer's rules ``into the OSHA standards which are the subject of
this rulemaking would violate the rulemaking provisions of the
Occupational Safety and Health Act, the Administrative Procedures Act,
and the Federal Register Act'' (Ex. 0170). The National Association of
Manufacturers similarly stated, with reference to this provision:
``OSHA has never had the authority to incorporate the provisions of
millions of private contracts into OSHA standards, nor to delegate its
rulemaking authority to private entities'' (Ex. 0222). EEI also
commented that the proposed requirement ``effectively would place each
host employer in the position of promulgating safety and health
standards for contractors' employees, and therefore would constitute an
unconstitutional delegation of legislative power'' (Ex. 0227).
OSHA does not believe that the proposed provision would cause the
practical problems identified by rulemaking participants. There is
evidence in the record that, as IBEW stated, ``contractors . . .
routinely adapt their work rules and safety practices to accommodate
the demands of particular jobs and the requirements of specific hosts''
(Ex. 0505). The union explained this statement as follows:
There are circumstances related to contractors performing work
on utility properties that would require the contractors to work
under the host employer's safety related work rules to ensure both
the contractor employees and the host employer employees are
provided a safe work environment. In fact, many collective
bargaining agreements require this. [Ex. 0230]
Mr. Brian Erga with ESCI noted that some utilities have such unique
systems that contractors have no choice but to follow the host's rules
(Tr. 1271-1272). Several witnesses stated that contractors routinely
follow a host employer's lockout-tagout requirements (Tr. 314, 984,
1299-1301). There is evidence that some host employers require
contractors to follow NFPA 70E (Ex. 0460), to follow the host's fall
protection requirement for working from aerial lifts (Tr. 391), and to
use particular types of flame-resistant clothing (Tr. 1346). In
addition, the proposal did not require contractors to follow all of the
host employer's safety rules, only rules the host imposes on
contractors, which the contractors are required to follow anyway. The
Agency also does not believe that proposed paragraph (c)(2)(ii) would
result in undue confusion from work rules that vary from one employer
to another. The record indicates that contractors are already required
to institute different work rules because of contractual or other
requirements imposed by host employers, such as following the host
employers' lockout-tagout procedures (Tr. 314), using particular live-
line work methods (Tr. 320), and using particular forms of fall
protection (Tr. 643-644).
On the other hand, the record establishes that hosts sometimes
impose rules that do not meet OSHA requirements (Tr. 1366 \74\) or that
may be less safe than the contractor's rules (Tr. 1365-1366 \75\).
These are outcomes that OSHA did not envision in proposing paragraph
(c)(2)(ii). Considering these potential risks, and the commenters'
overwhelming opposition to this proposed provision, the Agency decided
not to include proposed paragraph (c)(2)(ii) in the final rule.
---------------------------------------------------------------------------
\74\ Some host employers ``don't believe in equipotential work
zone,'' which is required by existing Sec. 1910.269(n)(3), or want
trucks barricaded, instead of having them grounded, as required by
existing Sec. 1910.269(p)(4)(iii)(C).
\75\ One host employer requires contractor employees to wear
rubber insulating gloves while working with live-line tools on
transmission lines, which may cause the gloves to fail.
---------------------------------------------------------------------------
OSHA concludes, however, that some coordination of work rules
between
[[Page 20366]]
hosts and contractors is necessary, particularly with respect to
deenergizing lines and equipment (Ex. 0505) and grounding procedures
---------------------------------------------------------------------------
(Tr. 1271-1272). According to IBEW:
[What is important] is not that one party's rules take
precedence over the others. Instead, what is important is that the
parties operating on an electrical system coordinate procedures to
ensure that all of the employees can perform safely. There are two
sets of circumstances in which this kind of coordination is an
issue: Where employees actually work together and when the manner in
which one group of employees performs has an impact on the safety of
another group of employees. [Ex. 0505]
Other rulemaking participants similarly supported a requirement for
coordination between host employers and contract employers to assure
the protection of host employees and contract employees. (See, for
example, Exs. 0128, 0235, 0237.) Therefore, the Agency is adopting a
new paragraph in the final rule, Sec. 1926.950(c)(3), entitled ``Joint
host- and contract-employer responsibilities,'' which reads as follows:
The contract employer and the host employer shall coordinate
their work rules and procedures so that each employee of the
contract employer and the host employer is protected as required by
this subpart.
This new provision provides host employers and contract employers more
flexibility than the proposal to select appropriate work rules and
procedures for each task or project, while ensuring that workers are
not at risk of harm due to a lack of coordination between employers.
Under the new provision, each employer has independent
responsibility for complying with the final rule. In addition, the
Agency stresses that a contract employer must comply with the final
rule even though a host employer may try to impose work rules that
would cause the contract employer to violate OSHA's rules. Accordingly,
a contract employer is not relieved of its duty to comply with the
final rule by following a work rule imposed by the host employer. For
example, a contract employer must comply with final Sec. 1926.962(c),
which prescribes rules for equipotential grounding, even if the host
employer has its own noncompliant grounding procedures. Paragraph
(c)(3) of final Sec. 1926.950 requires host employers and contract
employers to confer in an effort to select work rules and procedures
that comply with final Sec. 1926.962(c).
Final paragraphs (c)(2)(ii) and (c)(2)(iii) (proposed as part of
paragraph (c)(2)(iii)) require the contract employer to advise the host
employer of unique hazardous conditions posed by the contract
employer's work \76\ and any unanticipated hazardous conditions found,
while the contractor's employees were working, that the host employer
did not mention. Final paragraphs (c)(2)(ii) and (c)(2)(iii) enable the
host employer to take necessary measures to protect its employees from
hazards of which the host employer would not be aware. These
requirements will protect the host employer's employees: when they are
working near the contractor's employees (for example, during storm
situations (Tr. 315, 392, 1379-1380); during outages on transmission
lines (Tr. 1380) and in plants (Tr. 985); while working in the same
substation (Tr. 313-314, 559); and when the host employer's employees
work on the same equipment after the contract employer departs (such
as, when contractors are working on equipment in the field that the
host employer does not regularly inspect) (Tr. 877-878)). The Utility
Workers Union supported these proposed requirements, commenting:
``Requiring the sharing of information of hazards found or created by
the contractor is . . . insurance that all employees, host and
contractor, are in a safer working environment'' (Ex. 0197). OSHA notes
that proposed paragraph (c)(2)(iii)(B) (now paragraph (c)(2)(iii))
required contractors to report any unanticipated ``hazards'' not
mentioned by the host; however, in the final rule, the phrase
``hazardous conditions'' replaces the word ``hazards'' throughout
paragraph (c). In addition, the Agency anticipates that contract
employers will inform host employers of any information provided by the
host that is at odds with actual conditions at the worksite, consistent
with paragraph (c)(3), which specifies that host employers and contract
employers coordinate their work rules and procedures so that each
employee is protected as required by subpart V.
---------------------------------------------------------------------------
\76\ For the purposes of final paragraph (c)(2)(ii), ``unique
hazardous conditions presented by the contract employer's work''
means hazardous conditions that the work poses to which employees at
the worksite are not already exposed.
---------------------------------------------------------------------------
Some commenters believed that proposed paragraph (c)(2)(iii) (now
paragraphs (c)(2)(ii) and (c)(2)(iii)) needed clarification. For
example, the Associated General Contractors of America (AGC) commented
that proposed paragraph (c)(2)(iii) was vague and did not provide
guidance on the timeframes or format of required information transfers
(Ex. 0160).
OSHA does not agree that final paragraphs (c)(2)(ii) or (c)(2)(iii)
are vague or unclear. These provisions simply require that contractors
provide information to host employers, which reciprocates the
requirements under final paragraph (c)(1) that host employers provide
contractors with information. The Agency deliberately omitted, in the
proposed and final rules, any requirement for a formal or written
report; the final rule simply requires contractors to advise the host
employer, which allows contract employers maximum flexibility in
complying with the final requirements. The Agency will deem it
sufficient for the contract employer to provide the necessary
information, through any appropriate mechanism (for example, a phone
call or an email), to an authorized agent of the host employer.
The purpose of final paragraph (c)(2)(ii) is to enable host
employers to protect their own employees from hazardous conditions
presented by the contractor's work. Thus, the information addressed by
paragraph (c)(2)(ii) needs to be provided to the host employer soon
enough so that the host employer can take any necessary action before
its employees are exposed to a hazardous condition. To address AGC's
concern that the proposed paragraph did not provide guidance on the
timeframe of the required information transfer, OSHA added language to
paragraph (c)(2)(ii) in the final rule to indicate that this
information must be provided ``[b]efore work begins.''
The final rule also includes, in paragraph (c)(2)(iii), a 2-working
day timeframe in which the contractor must advise the host employer of
information described in that paragraph. OSHA believes that this
timeframe will give the contract employer sufficient time to provide
the required information. The final rule does not specifically require
hosts to take any direct action in response to information provided by
contractors, although the Agency anticipates that host employers will
use this information to protect their employees and comply with the OSH
Act.
Frequently, the conditions present at a jobsite can expose workers
to unexpected hazards. For example, the grounding system available at
an outdoor site may be damaged by weather or vehicular traffic, or
communications cables in the vicinity could reduce the approach
distance to an unacceptable level. To protect employees from such
adverse situations, conditions affecting safety that are present in the
work area should be known so that appropriate action can be taken.
Paragraph (d) of Sec. 1926.950 addresses this problem by requiring
safety-related characteristics and conditions existing in the work area
to
[[Page 20367]]
be determined before employees start working in the area. The language
for proposed paragraph (d) was based on language in current Sec.
1926.950(b)(1) and was the same as existing Sec. 1910.269(a)(3). A
similar requirement can be found in ANSI/IEEE C2-2002, Rule 420D.\77\
As noted earlier, OSHA revised the language in the final rule to
clarify that the paragraph addresses installation characteristics, as
well as work-area conditions, and to separately number the examples
listed in the provision.
---------------------------------------------------------------------------
\77\ The 2012 NESC contains an equivalent requirement in Rule
420D.
---------------------------------------------------------------------------
OSHA received only a few of comments on proposed paragraph (d). EEI
objected to this provision, commenting:
EEI recognizes that the regulatory text of proposed paragraph
1926.950(d) is the same as in existing 1910.269(a)(3). Also, the
preamble accompanying the current proposal is essentially the same
as in the final 1910.269. There are certain aspects of the current
proposal, however, that are troublesome. . . .
* * * * *
It is susceptible of being applied in a manner that effectively
requires an employer to examine every imaginable condition on a
jobsite, lest it be held accountable if some obscure, unexpected
condition later is involved in causing an accident.
* * * * *
[I]f the standard is not applied reasonably, the result could be
a significant burden for line crews, as time is taken not to miss a
single detail, however obscure, lest the crew be second-guessed for
having missed observing some condition if something later goes
wrong. In the final rule, OSHA needs to address this issue. Rather
than state that there is an unqualified obligation to ``determine''
existing conditions relating to the safety of the work, the
obligation should be modified to require a ``reasonable effort to
determine'' the reasonably anticipated hazards. [Ex. 0227]
EEI noted, as an example of ``some obscure, unexpected condition . . .
involved in causing an accident,'' an energized static line that caused
the electrocution of an apprentice line worker (id.):
In that case, the contractor was performing maintenance work on
a high-voltage transmission tower. The host utility was shown to
have been aware that what appeared to be a grounded static line atop
one side of the tower was in fact energized at 4,000 volts. The
utility did not inform the contractor of this information, however,
and the contractor's foremen on the ground and on the tower did not
notice that there was an insulator separating the line and tower,
thus indicating that the line could be energized. [Id.]
EEI stated that the contractor was cited, under existing Sec.
1910.269(a)(3), ``for failing to ascertain existing conditions, i.e.,
the energized condition of the static line, before beginning work''
(id.).
OSHA considered this comment and decided not to adopt EEI's
recommended change to proposed Sec. 1926.950(d). First, OSHA does not
believe that obscure and unexpected conditions often lead to accidents,
as EEI seems to argue. EEI's example, in which an apprentice power line
worker was electrocuted by an energized static line, is a case in point
(id.). An employer exercising reasonable diligence can be expected to
determine that a static line is energized. In the case described by
EEI, the electric utility that owned the line was aware that the line
was energized, and the line itself was installed on insulators (id.).
Thus, the energized condition of the static wire was neither obscure
nor unexpected.
Second, EEI appears confused about the purpose of this provision.
Paragraph (d) of final Sec. 1926.950 requires employers to determine,
before work is started on or near electric lines or equipment, existing
installation characteristics and work-area conditions related to the
safety of the work to be performed. The requirement also includes
examples of such characteristics and conditions.
Characteristics of the installation, such as the nominal voltage on
lines, maximum switching transient overvoltages, and the presence of
grounds and equipment grounding conductors, are parameters of the
system. This is information the employer already has, either through
direct knowledge or by the transfer of information from the host
employer to the contract employer.\78\ Thus, this aspect of final
paragraph (d) does not place any burden, much less an unreasonable one,
on line crews.
---------------------------------------------------------------------------
\78\ The employer may not have knowledge of the exact locations
of customer-owned backup generators; however, the location of
possible sources of backfeed from such customer-owned equipment can
readily be determined by looking for connections to customers'
wiring in circuit diagrams or during an inspection at the worksite.
---------------------------------------------------------------------------
Conditions of the installation, including the condition of
protective grounds and equipment grounding conductors, the condition of
poles, and environmental conditions relating to safety, are worksite
conditions. In some cases, the employer already will have information
on the condition of the installation, such as information on the
condition of poles from pole-inspection programs or on the condition of
electric equipment from equipment manufacturers. In the usual case,
however, the conditions addressed by paragraph (d) of the final rule
will be determined by employees through an inspection at the worksite.
This inspection need not be overly detailed, but it does need to be
thorough rather than cursory. The standard does not require crews to
determine ``every imaginable condition,'' as EEI suggests. Rather, the
inspection must be designed to uncover the conditions specifically
noted in this paragraph as well as any other conditions of electric
lines and equipment that are related to the safety of the work to be
performed and that can be discovered through the exercise of reasonable
diligence by employees with the training required by Sec. 1926.950(b)
of the final rule.
Employers are required by Sec. 1926.952(a)(1) of the final rule to
provide information on such worksite-specific conditions and the
characteristics of the installation to the employee-in-charge. With
this information, the employer then will determine the current
conditions of the installation through an examination by employees at
the worksite. Employer-supplied information, as well as information
gathered at the worksite, must be used in the job briefing required by
Sec. 1926.952 of the final rule. (See the discussion of Sec. 1926.952
later in this section of the preamble.) The characteristics and
conditions found as a result of compliance with final Sec. 1926.950(d)
could affect the application of various Subpart V requirements. For
example, the voltage on equipment will determine the minimum approach
distances required under final Sec. 1926.960(c)(1). Similarly, the
presence or absence of an equipment grounding conductor will affect the
work practices required under final Sec. 1926.960(j). If conditions
are found to which no specific subpart V provision applies, then the
employee would need to be trained, as required by final Sec.
1926.950(b)(1)(ii), to use appropriate safe work practices.
Employers need not take measurements on a routine basis to make the
determinations required by final Sec. 1926.950(d). For example,
knowledge of the maximum transient voltage level is necessary to
perform many routine transmission and distribution line jobs safely.
However, no measurement of this maximum level is necessary to make the
requisite determination. Employers can make the determination by
conducting an analysis of the electric circuit, or they can assume the
default maximum transient overvoltages discussed under the summary and
explanation of final Sec. 1926.960(c)(1), later in this section of
[[Page 20368]]
the preamble. Similarly, employers can make determinations about the
presence of hazardous induced voltages, as well as the presence and
condition of grounds, without taking measurements.
It may be necessary for employers to make measurements when there
is doubt about the condition of a ground or the level of induced or
transient voltage if the employer is relying on one of these conditions
to meet other requirements in the standard. For example, an engineering
analysis of a particular installation might demonstrate that the
voltage induced on a deenergized line is considerable, but should not
be dangerous. However, a measurement of the voltage may be required if
the employer is using this analysis as a basis for claiming that the
provisions of final Sec. 1926.964(b)(4) on hazardous induced voltage
do not apply. In another example, further investigation is required
when an equipment ground is found to be of questionable reliability,
unless the equipment is treated as energized under final Sec.
1926.960(j).
EEI was concerned about this discussion of engineering analysis in
the preamble to the proposed rule (70 FR 34841), commenting:
This [discussion] is unrealistic: engineering analyses are not
made in the field in transmission and distribution work. [Ex. 0227]
OSHA agrees with EEI that engineering analyses are not made in the
field. Under this provision of the final rule, employers would conduct
any engineering analyses required by this provision off site and supply
the requisite information to the employees performing the work.
Section 1926.951, Medical services and first aid
Section 1926.951 sets requirements for medical services and first
aid. Paragraph (a) of Sec. 1926.951 emphasizes that the requirements
of Sec. 1926.50 apply. (See Sec. 1926.950(a)(2).) Existing Sec.
1926.50 includes provisions for available medical personnel, first-aid
training and supplies, and facilities for drenching or flushing of the
eyes and body in the event of exposure to corrosive materials.
Mr. Daniel Shipp with the International Safety Equipment
Association (ISEA) recommended that the reference in Sec. 1926.50,
Appendix A, to ANSI Z308.1-1978, Minimum Requirements for Industrial
Unit-Type First-aid Kits, be updated to the 2003 edition (Ex. 0211).
OSHA did not propose any changes to Sec. 1926.50, nor was that section
a subject of this rulemaking. Thus, the Agency is not adopting Mr.
Shipp's suggestion. It should be noted, however, that Appendix A to
Sec. 1926.50 is not mandatory. The Agency encourages employers to
examine the recommendations in the latest edition of the consensus
standard, which is ANSI/ISEA Z308.1-2009, when reviewing the guidance
in Appendix A to Sec. 1926.50.
Mr. Stephen Sandherr with AGC was concerned that the requirements
proposed in Sec. 1926.951 conflicted with the requirements in Sec.
1926.50 and maintained that such a conflict would hinder a contractor's
ability to implement safety (Ex. 0160).
OSHA reexamined the requirements in proposed Sec. 1926.951 and
found that the requirements for first-aid supplies in proposed
paragraphs (b)(2) and (b)(3) in that section conflicted with similar
requirements in Sec. 1926.50. Proposed paragraph (b)(2) would have
required weatherproof containers if the supplies could be exposed to
the weather, whereas existing Sec. 1926.50(d)(2) requires that the
contents of first-aid kits be placed in weatherproof containers, with
individual sealed packages for each type of item. Further, proposed
paragraph (b)(3) would have required that first-aid kits be inspected
frequently enough to ensure that expended items are replaced, but not
less than once per year. By contrast, existing Sec. 1926.50(d)(2)
requires that first-aid kits ``be checked by the employer before being
sent out on each job and at least weekly on each job to ensure that the
expended items are replaced.''
As noted earlier, final Sec. 1926.951(a), which requires that
employers comply with existing Sec. 1926.50, was adopted without
change from the proposal. The Agency is not including proposed
paragraphs (b)(2) and (b)(3) in the final rule because these provisions
were less restrictive than the requirements of Sec. 1926.50. Including
them in the final rule would compromise OSHA's efforts to enforce Sec.
1926.50 on jobsites covered by Subpart V. OSHA notes that the remaining
provisions in Sec. 1926.951 apply in addition to those in Sec.
1926.50.
Final Sec. 1926.951(b) supplements Sec. 1926.50 by requiring
cardiopulmonary resuscitation (CPR) to help resuscitate electric shock
victims.\79\ OSHA concludes that the requirements for CPR training in
the final rule are supported by the record. This training is required
by existing Sec. 1910.269(b)(1), and work under subpart V poses the
same electric-shock hazards and requires the same protection against
those hazards. As discussed in the summary and explanation for Sec.
1926.953(h), the final rule defines ``first-aid training'' to include
CPR training. Therefore, in final Sec. 1926.951(b), OSHA replaced the
proposed phrase ``persons trained in first aid including
cardiopulmonary resuscitation (CPR)'' with ``persons with first-aid
training.'' The Agency stresses that CPR training is required by this
and other provisions in the final rule for first-aid training.
---------------------------------------------------------------------------
\79\ In discussing these remaining provisions in this preamble,
OSHA generally uses the term ``CPR training'' to describe the first-
aid training required by the provisions. OSHA does not mean to imply
by this language that the final provisions do not require first-aid
training other than CPR. In fact, as explained later in the
preamble, the final rule defines ``first-aid training'' as training
in the initial care, including CPR, performed by a person who is not
a medical practitioner, of a sick or injured person until definitive
medical treatment can be administered. OSHA is emphasizing ``CPR
training'' in its preamble discussion because that type of first aid
is particularly beneficial to workers who are injured by an electric
shock.
---------------------------------------------------------------------------
Electric shock is a serious and ever-present hazard to electric
power transmission and distribution workers because of the work they
perform on or with energized lines and equipment. CPR is necessary to
revive an employee rendered unconscious by an electric shock. As OSHA
concluded in the 1994 Sec. 1910.269 rulemaking, CPR must be started
within 4 minutes to be effective in reviving an employee whose heart
has gone into fibrillation (59 FR 4344-4347; see also 269-Ex. 3-21).
To protect employees performing work on, or associated with,
exposed lines or equipment energized at 50 volts or more, OSHA proposed
to require that employees with training in first aid including CPR be
available to render assistance in an emergency.
OSHA chose 50 volts as a widely recognized threshold for hazardous
electric shock.\80\ In this regard, several OSHA and national consensus
standards recognize this 50-volt threshold. For example, OSHA's general
industry and construction electrical standards require guarding live
parts energized at 50 volts or more (Sec. Sec. 1910.303(g)(2)(i) and
1926.403(i)(2)(i)); the general industry electrical standard also
requires that electric circuits be deenergized generally starting at 50
volts (Sec. 1910.333(a)(1)). Similarly, NFPA's Standard for Electrical
Safety in the Workplace (NFPA 70E-2004) and the National Electrical
Safety Code (ANSI/IEEE C2-2002) impose electrical safety requirements
starting at 50 volts (Exs. 0134, 0077, respectively). (See, for
example, Section 400.16 of NFPA 70E-
[[Page 20369]]
2004, which requires guarding of live parts of electric equipment
operating at more than 50 volts, and Rule 441A2 of ANSI/IEEE C2-
2002,\81\ which prohibits employees from contacting live parts
energized at 51 to 300 volts unless certain precautions are taken.)
---------------------------------------------------------------------------
\80\ Although it is theoretically possible to sustain a life-
threatening shock below this voltage, it is considered extremely
unlikely. (See, for example, Ex. 0428.)
\81\ The 2012 NESC contains a similar requirement in Rule 441A2.
---------------------------------------------------------------------------
Many electric shock victims suffer ventricular fibrillation (59 FR
4344-4347; 269-Ex. 3-21). Ventricular fibrillation is an abnormal,
chaotic heart rhythm that prevents the heart from pumping blood and, if
unchecked, leads to death (id.). Someone must defibrillate a victim of
ventricular fibrillation quickly to allow a normal heart rhythm to
resume (id.). The sooner defibrillation is started, the better the
victim's chances of survival (id.). If defibrillation is provided
within the first 5 minutes of the onset of ventricular fibrillation,
the odds are about 50 percent that the victim will recover (id.).
However, with each passing minute, the chance of successful
resuscitation is reduced by 7 to 10 percent (id.). After 10 minutes,
there is very little chance of successful rescue (id.). Paragraph (b)
of the final rule requires CPR training to ensure that electric shock
victims survive long enough for defibrillation to be efficacious. The
employer may rely on emergency responders to provide defibrillation.
In the preamble to the proposal, OSHA requested public comment on
whether the standard should require the employer to provide automated
external defibrillators (AEDs) and, if so, where they should be
required. AEDs are widely available devices that enable CPR-trained
individuals to perform defibrillation.
Many rulemaking participants recommended that OSHA not adopt a
requirement for AEDs. (See, for example, Exs. 0125, 0162, 0167, 0169,
0171, 0173, 0174, 0177, 0200, 0225, 0227; Tr. 635-636, 762-763.) Some
commenters argued that there were no injuries for which AEDs would
prove beneficial. (See, for example, Exs. 0174, 0200; Tr. 635-636, 762-
763.) In this regard, Mr. Steven Semler, commenting on behalf of ULCC,
stated:
[W]hen tragic electric contact accidents do, albeit rarely,
occur with respect to line clearance tree trimmers, they tend to
involve catastrophic accidental direct contract with high voltage
electric supply lines which inherently pass massive amounts of
electricity through the victim which irreversibly damages cardiac
conductivity altogether--as to which AED's cannot, nor even purport
to, rectify . . . . It is, of course, a misnomer that AED's can
restart a heart which is stopped from electrical contact or any
other reason. The stoppage is known as ``asystole'' for which an AED
is programmed to not shock the patient because AED's cannot start a
stopped heart--for instance, one whose stoppage is due to
destruction of the heart's electrical path, or due to irreversible
brain damage, respiratory muscle paralysis, tissue burn, or due to
electrical contact which serves to destroy the ability to breathe.
Rather, AED's use is limited solely to cases of cardiac
fibrillation--cases of the heart beating in quivering fashion so as
to cease effective pumping capacity (and also to rarer situations of
ventricular tachycardia where the heart beats very fast). But, as a
trauma specialist physician has observed, ventricular fibrillation
is a rare occurrence in high voltage electrical contacts, as to
which rescue breathing and CPR (currently required) are remedial
pending arrival of medical help. [Footnote: Richard F. Edlict, MD,
``Burns, Electrical, www.emedicine.com/plastic/topic491.htm (7/12/
05) . . .]
Given that the unfortunate nature of line clearance tree
trimmers cardiac events due to electric contact tend to be
catastrophic because of accidental non compliance with the OSHA
minimum distance separation from electric supply lines separation
requirement, the cardiac events which unfortunately have happened to
line clearance tree trimmers have tended to catastrophic, tending to
involve cardiac and brain damage of such severity that AED's are not
designed to, and cannot, perform a useful purpose. [Ex. 0174;
emphasis included in original]
Furthermore, TCIA presented polling data to show that their members
have not experienced any occupational incidents for which AED use would
have been appropriate to treat the victim (Exs. 0200, 0419).
On the other hand, several rulemaking participants pointed out that
AEDs have saved lives (Exs. 0213, 0230). TVA, which has deployed AEDs
in both fixed work locations, such as generation plants, and in field
service-centers, reported two successful uses of AEDs in a 17-month
period (Ex. 0213). IBEW commented that ``AED units have proven to be
effective in the utility industry. More than one `save' has occurred''
(Ex. 0230). Testifying on behalf of IBEW, Mr. James Tomaseski stated,
``[B]ased on what the experts tell you about the need to have AEDs in
certain environments, [electric utility work] is [at the] top of the
list. We have an aging workforce. The possibilities of sudden cardiac
arrest to occur to people in this industry is very high'' (Tr. 964).
The Agency concludes that employees performing work covered by
subpart V and Sec. 1910.269 are exposed to electric shocks for which
defibrillation is needed as part of the emergency medical response to
such injuries. The Agency bases this conclusion on the evidence in both
this record, as well as the record supporting its decision in the 1994
Sec. 1910.269 rulemaking to require first-aid training, including CPR
training, for work covered by that standard. OSHA found in its 1994
Sec. 1910.269 rulemaking that line-clearance tree trimmers were
exposed to electric-shock hazards for which CPR would be efficacious
(59 FR 4344-4347), and the National Arborist Association (TCIA's
predecessor) pointed out that low-voltage electric shock can result
from indirect contact with higher voltage sources (269-Ex. 58, 59 FR
4345). OSHA's inspection data amply demonstrate that indirect contacts,
such as contacting a power line through a tree branch, do occur in work
covered by Sec. 1910.269 and Subpart V (Ex. 0400). Half of the ten
line-clearance tree-trimmer electrocutions described in these data
resulted from indirect contacts. The experience of TVA and IBEW
reinforces the Agency's conclusion that employees performing work
covered by Subpart V and Sec. 1910.269 are exposed to electric shocks
for which defibrillation is needed as part of the emergency medical
response.
Many rulemaking participants argued that work covered by Subpart V
would subject AEDs to environmental and other conditions for which the
devices are not, or may not be, designed, including:
Extreme heat (see, for example, Exs. 0169, 0171, 0173,
0177, 0227),
Extreme cold (see, for example, Exs. 0169, 0171, 0173,
0177, 0227),
Vibration or jarring (see, for example, Exs. 0169, 0173,
0175),
Dust (see, for example, Exs. 0169, 0171, 0173, 0175), and
Humidity and moisture (see, for example, Exs. 0169, 0171,
0173).
For instance, Mr. Wilson Yancey with Quanta Services commented that the
conditions to which AEDs would be exposed could ``quickly degrade the
performance of the equipment and require frequent inspection and
maintenance'' (Ex. 0169). Ms. Salud Layton with the Virginia, Maryland
& Delaware Association of Electric Cooperatives commented, ``Most field
experience with AED's has been at either fixed sites or carried by
ambulances in padded bins/cases inside of heated and cooled ambulance
bodies. This is not what the AED's would be exposed to on a utility
vehicle'' (Ex. 0175). Mr. Thomas Taylor with Consumers Energy noted
that manufacturers' instructions tightly control AEDs' storage
requirements, explaining:
[[Page 20370]]
[L]ine truck storage conditions would prohibit the AED from
functioning properly and therefore provide no tangible safety
benefit to employees. In this regard, the manufacturer instructions
for preventing electrode damage states: ``Store electrodes in a
cool, dry location (15 to 35 degree Celsius or 59 to 95 degrees
Fahrenheit''. The instruction also states: [``]It is important that
when the AED is stored with the battery installed, temperature
exposure should not fall below 0 degrees Celsius (32 degrees
Fahrenheit) or exceed 50 degrees Celsius (122 degrees Fahrenheit).
If the AED is stored outside this temperature range, the auto tests
may erroneously detect a problem and the AED may not operate
properly.[''] [Ex. 0177]
OSHA decided not to include a requirement for AEDs in the final
rule because the Agency believes that there is insufficient evidence in
the record that AEDs exposed to the environmental extremes typical of
work covered by Subpart V and Sec. 1910.269 would function properly
when an incident occurs. There is no evidence in the record that AEDs
are adversely affected by dust, vibration, or humidity; however, it is
clear that line work in many areas of the country would subject AEDs to
temperatures above and below their designed operating range of 0 to 50
degrees Celsius. For example, Mr. Frank Owen Brockman with the Farmers
Rural Electric Cooperatives testified that temperatures in Kentucky can
get as cold as -34 degrees Celsius and as high as 44 degrees Celsius
(Tr. 1283). Although the record indicates that the highest of these
temperatures is within the operating range of AEDs, OSHA believes that
it is likely that the interior of trucks would be significantly hotter
than the 50-degree Celsius recommended maximum. Accordingly, there is
insufficient evidence in the record for the Agency to determine whether
AEDs will work properly in these temperature extremes during use, even
if they are stored in temperature-controlled environments as mentioned
by some rulemaking participants (see, for example, Ex. 0186; Tr. 965-
966).\82\
---------------------------------------------------------------------------
\82\ Some rulemaking participants gave other reasons why OSHA
should not require AEDs, including: Costs of acquiring the devices
(see, for example, Exs. 0162, 0169, 0173, 0174, 0200, 0227), varying
State requirements related to AEDs, such as requirements that they
be prescribed by a physician (see, for example, Exs. 0125, 0149,
0227), conflicts with requirements of other Federal agencies, such
as the Food and Drug Administration (see, for example, Exs. 0177,
0227), and OSHA's failure to meet all its regulatory burdens, such
as burdens imposed by the Small Business Regulatory Enforcement
Fairness Act (Ex. 0170). Because OSHA decided not to require AEDs
for the reason given in this section of the preamble, it need not
consider these other issues.
---------------------------------------------------------------------------
As explained previously, the Agency stresses that defibrillation is
a necessary part of the response to electric shock incidents that occur
during work covered by the final rule. OSHA is not adopting a rule
requiring AEDs because the record is insufficient for the Agency to
conclude that these devices will be effective in the conditions under
which they would be used. OSHA encourages employers to purchase and
deploy AEDs in areas where they could be useful and efficacious. This
action likely will save lives and provide the Agency with useful
information on the use of AEDs under a wide range of conditions.
Proposed paragraph (b)(1) would have required CPR training for
field crews of two or more employees, in which case a minimum of two
trained persons would generally have been required (proposed paragraph
(b)(1)(i)), and for fixed worksites, in which case enough trained
persons to provide assistance within 4 minutes would generally have
been required (proposed paragraph (b)(1)(ii)). Proposed paragraph
(b)(1)(i) provided that employers could train all employees in first
aid including CPR within 3 months of being hired as an alternative to
having two trained persons on every field crew. If the employer chose
this alternative for field work, then only one trained person would
have been required for each crew. In practice, crews with more than one
employee would normally have two or more CPR-trained employees on the
crew, since all employees who worked for an employer more than 3 months
would receive CPR training. However, employers who rely on seasonal
labor (for example, employees hired only in the summer months), or
those with heavy turnover, might have some two-person crews with only
one CPR-trained employee. Because the Agency was concerned that those
new employees might be most at risk of injury, OSHA requested comment
on whether allowing employers the option of training all their
employees in CPR if they are trained within 3 months of being hired is
sufficiently protective. The Agency also requested comment on how this
provision could be revised to minimize the burden on employers, while
providing adequate protection for employees.
Several commenters shared OSHA's concern with the 3-month delay in
CPR training. (See, for example, Exs. 0126, 0187, 0213, 0230) Mr. Rob
Land with the Association of Missouri Electric Cooperatives commented
that this option was too hazardous because of ``the hazards that
linemen face and the distinct possibility that [emergency medical
services] may be delayed due to remoteness and distances involved''
(Ex. 0187). TVA opposed the option because the ``3[ ]months when a two-
person crew would have only one CPR trained member . . . reduce[s] the
level of safety provided'' (Ex. 0213). IBEW presented its reasons for
opposing the 3-month option, and its recommendation for revising the
rule, as follows:
Allowing employers the option of training all their employees in
CPR if they are trained within 3 months of being hired may not work
in all situations. Many utilities engaged in field work have
implemented the use of 2-person crews. It is not uncommon for the 2-
person crew to perform rubber gloving work on all distribution
voltage ranges. It is also not uncommon for a utility to assign a
new-hire (less than 3 months of service) as the second person on the
2-person crew. In these work scenarios, the second person would have
to be trained in CPR. Waiting 3 months to complete this training
would not [be] proper.
* * * * *
The only revision that is necessary is to make it clear that
under certain circumstances, new-hires may need to be trained in CPR
well before the 3 month window. Manning of crews, especially in the
construction industry, cannot always be accomplished using CPR
certification as a factor. All employees need to receive the
training and the 3 months gives enough flexibility when
appropriate[.] [Ex. 0230; emphasis included in original]
Other rulemaking participants supported the provision as proposed.
(See, for example, Exs. 0155, 0162, 0174, 0200; Tr. 633-635, 764-765.)
Some of them argued that the provision, which was taken from existing
Sec. 1910.269(b)(1)(i), has worked well. (See, for example, Exs. 0155,
0200; Tr. 764.) The tree care industry stated that the line-clearance
tree trimming industry did not use seasonal labor and argued that the
3-month delay in training new employees in CPR was justified on the
basis of high turnover in that industry (Exs. 0174, 0200; Tr. 633-635,
764-765). For example, testifying on behalf of ULCC, Mr. Mark Foster
stated:
[T]he current standard reflects a clearly considered balance
made by OSHA at the time of adoption of the current standard to
allow a three-month phase-in period for CPR compliance for new
hires. That policy judgment rests on the fact that there was then an
81 percent turnover rate among line clearance tree trimming
employees such that many would not last in employment beyond the
initial training period and that that would be very difficult to
field crews if new hires had first had to be sent for CPR training.
While the turnover ratio has improved somewhat, it is still
staggering[ly] high, [presenting] the same considerations that led
to the adoption of the phase-in period in the initial standard. [Tr.
633-634]
In its comment, ULCC indicated that the annual turnover rate in the
line-
[[Page 20371]]
clearance tree trimming industry is 53 to 75 percent (Ex. 0174).
OSHA decided to restrict the exception permitting a 3-month delay
in training employees in first aid, including CPR, to line-clearance
tree trimming. The Agency agrees that turnover in the line-clearance
tree trimming industry remains high, which was the underlying reason
for OSHA's original adoption of the 3-month delay in training for newly
hired employees in the 1994 Sec. 1910.269 rulemaking (59 FR 4346-
4347). However, as noted by Mr. Land, the provision as proposed leaves
employees exposed to hazards when a new employee who has not yet been
trained in CPR is the second person in a two-worker crew (Ex. 0187).
IBEW also recognized the need to have both employees trained in CPR in
many circumstances (Ex. 0230). Finally, turnover rates for the electric
utility and power line contractor industries are not nearly as high as
that for the tree trimming industry. OSHA estimates that the turnover
rates among employees performing electric power generation,
transmission, and distribution work ranges from 11 to 16 percent in the
construction industries and 3 percent in the generation and utility
industries (see Section VI, Final Economic Analysis and Regulatory
Flexibility Analysis, later in the preamble). These turnover rates are
significantly lower than the turnover rate indicated by ULCC for the
line-clearance tree trimming industry.
Because this exception in the final rule applies only to line-
clearance tree trimming, which is addressed only in Sec. 1910.269, the
Agency is not adopting it in final Sec. 1926.951(b)(1).\83\ The
corresponding provision in Sec. 1910.269(b)(1)(i) retains the
exception providing for a 3-month delay in first-aid training,
including CPR, but only for line-clearance tree-trimming work.
---------------------------------------------------------------------------
\83\ Final Sec. 1926.951(b) uses the term ``trained persons,''
rather than ``trained employees,'' because the individuals with the
training do not necessarily need to be employees. For instance, the
``trained persons'' required by the rule could be self-employed
individuals working with a crew of employees.
---------------------------------------------------------------------------
These changes will continue to permit employers in the line-
clearance tree trimming industry to delay training in first aid,
including CPR, to new employees for a reasonable time.
Finally, OSHA notes that it remains concerned that some employees
in the line-clearance tree trimming industry might encounter an
unnecessary delay in being treated in an emergency. The Agency does not
believe that it is reasonable to unnecessarily staff crews so that some
crews had only one CPR-trained worker, while other crews had three or
four. Although the Agency is not addressing this concern in the final
rule, OSHA expects employers to staff each tree trimming crew with as
many employees trained in first aid as possible, including CPR, to
assist in emergencies.
Mr. Steven Theis of MYR Group requested that OSHA provide a similar
3-month grace period for refresher training (Ex. 0162).\84\
---------------------------------------------------------------------------
\84\ Although paragraph (b)(1) in the final rule does not
address refresher first-aid training, final Sec.
1926.950(b)(4)(iii) contains a general requirement that employees
receive additional training when they must employ safety-related
work practices (such as administering first aid) that are not
normally used during their regular work duties. A note following
Sec. 1926.950(b)(4)(iii) indicates that the Agency would consider
tasks performed less often than once per year to require retraining.
See the discussion of that requirement earlier in this section of
the preamble.
---------------------------------------------------------------------------
OSHA rejects this request. As stated, OSHA is adopting the 3-month
delay in CPR training because of the high turnover in the tree trimming
industry. There is no evidence in the record that this rationale also
applies to refresher training. The Agency expects employers to plan for
their employees' training needs and to schedule training in accordance
with the standard.
Mr. Paul Hamer, a member of the NFPA 70E Technical Committee on
Electrical Safety in the Workplace, recommended that OSHA require
first-aid training, including CPR training, for all qualified employees
who work on electric circuits of 50 volts or more. He also recommended
deleting the 4-minute maximum response time for fixed work locations
(Ex. 0228). He argued that the sooner a victim receives CPR, the less
cell damage will occur. On the other hand, the American Forest & Paper
Association recommended that the 4-minute requirement should be deleted
because ``no one could ensure ([that is], guarantee) survival of the
victim for any particular length of time or that defibrillation would
be successful'' (Ex. 0237).
OSHA rejects these recommendations. OSHA considered requiring all
employees to receive first-aid training, including CPR training, when
the Agency developed existing Sec. 1910.269. In lieu of such a
requirement, OSHA decided that the best approach was to require a 4-
minute maximum response time for fixed work locations and to require at
least two trained persons for field work involving crews of two or more
employees (existing Sec. 1910.269(b)). OSHA supplemented these
provisions with a requirement that two employees be present for work
exposing an employee to contact with exposed live parts energized at
more than 600 volts (existing Sec. 1910.269(l)(1)).\85\ This approach
continues to be the best one, as it ensures that persons trained in
first aid, including CPR, will be available to employees most at risk
of electrocution. The Agency further notes that Mr. Hamer's approach
does not address employees working alone in fixed work locations. In
these cases, it would still take time for someone to discover the
injury, which also would delay first-aid treatment, including CPR.
---------------------------------------------------------------------------
\85\ The issue of whether the requirement for two employees
should apply to voltages of 600 volts or less is discussed under the
summary and explanation of final Sec. 1926.960(b)(3), later in this
section of the preamble.
---------------------------------------------------------------------------
Two rulemaking participants commented that proposed paragraphs
(b)(1)(i) and (b)(1)(ii) were vague (Exs. 0175, 0180). They did not
understand the difference between ``field work'' and ``fixed work
locations'' (id.). For example, Ms. Salud Layton with the Virginia,
Maryland & Delaware Association of Electric Cooperatives questioned
whether the requirements for fixed work locations applied to work at
unmanned substations (Ex. 0175). OSHA does not consider an unmanned
location to be a fixed work location, as there are normally no
employees present. In determining whether to apply paragraph (b)(1) or
(b)(2), the Agency would treat an unmanned substation no differently
than a manhole or utility pole in the field.
As explained previously in this section of the preamble, OSHA
decided not to include proposed paragraphs (b)(2) or (b)(3) in the
final rule. The corresponding provisions in existing Sec.
1910.269(b)(2) and (b)(3) are being retained, however. The Agency did
not propose to revise these existing requirements and received no
comments alleging inconsistencies between existing Sec. 1910.269(b)
and Sec. 1910.151, OSHA's general industry standard addressing medical
services and first aid.
Section 1926.952, Job Briefing
In Sec. 1926.952, OSHA is requiring that employers ensure that
employees conduct a job briefing before each job. This section, which
has no counterpart in existing subpart V, is based largely on existing
Sec. 1910.269(c).
Most of the work covered by this final rule requires planning to
ensure employee safety (as well as to protect equipment and the general
public). Typically, electric power transmission and distribution work
exposes employees to the hazards of exposed conductors energized at
thousands of volts. If the work is not thoroughly
[[Page 20372]]
planned ahead of time, the possibility of human error that could harm
employees increases greatly. To avoid problems, the task sequence is
prescribed before work is started. For example, before climbing a pole,
the employee must determine if the pole is capable of remaining in
place and if minimum approach distances are sufficient, and he or she
must determine what tools will be needed and what procedure should be
used for performing the job. Without job planning, the worker may not
know or recognize the minimum approach-distance requirements or may
have to reclimb the pole to retrieve a forgotten tool or perform an
overlooked task, thereby increasing employee exposure to the hazards of
falling and contact with energized lines.
Employers performing electric power generation, transmission, and
distribution work use job briefings to plan the work and communicate
the job plan to employees. If the job is planned, but the plan is not
discussed with the workers, an employee may perform his or her duties
out of order or may not coordinate activities with the rest of the
crew, thereby endangering the entire crew. Therefore, OSHA is requiring
a job briefing before work is started.
Commenters agreed that job briefings are an important part of
electric power work. (See, for example, Exs. 0162, 0173, 0184, 0213,
0241; Tr. 1335.) For instance, Mr. John Masarick of the Independent
Electrical Contractors considered job briefings to be ``one of the most
critical steps for safety on any task'' (Ex. 0241). Also, Mr. Stephen
Frost of the Mid-Columbia Utilities Safety Alliance voiced his
organization's support for job briefings:
We strongly agree that the job briefing requirement should be
written into Sec. 1926.952. Good communications on the job is
paramount to safety, and too often workers either choose not to
communicate or don't have the skills to communicate their ideas. The
job briefing requirement makes it the personal responsibility of
every crew member to understand all aspects of the job. The time it
takes to do a thorough job briefing is usually 5 to 15 minutes. This
is time well-spent to eliminate the possibility of an accident due
to workers not knowing or controlling hazards in the work area. [Ex.
0184]
OSHA's experience in enforcing Sec. 1910.269(c), however, shows
that some employers are placing the entire burden of compliance with
the job briefing requirement on the employee in charge of the work.
Therefore, OSHA proposed to include a provision in Subpart V requiring
the employer to provide the employee in charge of a job with available
information necessary to perform the job safely. This requirement,
which is not in existing Sec. 1910.269(c), was in proposed Sec.
1926.952(a)(1). OSHA proposed to add the same requirement to Sec.
1910.269(c). A note following the proposed paragraph indicated that the
information provided by the employer was intended to supplement the
training requirements proposed in Sec. 1926.950(b) and was likely to
be more general than the job briefing provided by the employee in
charge. This note also clarified that information covering all jobs for
a day could be disseminated at the beginning of the day.
Many commenters recognized the need for the employer to provide
certain information to the employee in charge about conditions to which
an employee would be exposed. (See, for example, Exs. 0125, 0127, 0186,
0197, 0200, 0219, 0230.) For instance, Mr. Anthony Ahern with Ohio
Rural Electric Cooperatives commented:
The person in charge does need to be given more information than
is usually given him/her. They need to know things like the status
of the system where they will be working. What are the breaker
configurations/settings. Is reclosing enabled or disabled. What is
the available fault current at their work site. Are there any other
crews working in the area whose work could impact them. For the most
part most of this information is of a general type and a company
could probably develop a simple form that would be fairly easy to
fill out and attach to the usual work orders. This could also be
used to document that this information was given and could be used
to document the job briefing (tailgate) that the person in charge is
required to give the rest of the crew. [Ex. 0186]
Mr. James Junga, the Safety Director of Local 223 of the Utility
Workers Union of America (UWUA), also commented on the need for the
employer to supply information about the work:
Requiring the employer to provide adequate information to the
employee in charge of a crew is the best way of ensuring that all
available information is given to the crew leader. Then and only
then the crew leader will be able to brief the crew. Without this
requirement a crew leader will be left on his/her own to figure out
what the crew is to do. [Ex. 0197]
Some rulemaking participants described the types of information
that should be provided to employees. (See, for example, Exs. 0186,
0219; Tr. 402-403, 1373.) Commenters stated that employees in charge
need to be provided with the available fault current (Ex. 0186; Tr.
1373), circuit breaker settings, including whether reclosing is enabled
(Ex. 0186), whether there are other crews that could affect their work
(Ex. 0186), detailed maps and staking sheets (Ex. 0219), and relevant
information from outage reports by customers (Tr. 402-403).
Other rulemaking participants addressed when there was a need for
the employer to provide information about a job. Mr. Allan Oracion with
EnergyUnited EMC maintained: ``When a job is not routine, special or
large-scale, the employer needs to share any special information with
the employee in charge. When the employee in charge is working at a
distant location, radio or telephone can be used to communicate
information'' (Ex. 0219). Mr. Donald Hartley with IBEW stated that the
employer needs to provide information ``when a contractor's crew
performs its first tasks on a host employer's worksite or when the job
assignment involves hazards or conditions the crew has not yet
encountered'' (Tr. 887).
However, many commenters argued that the provision as proposed was
inappropriate. (See, for example, Exs. 0125, 0127, 0128, 0163, 0177,
0178, 0200, 0201 0226.) Many argued that the proposed provision was too
broad. (See, for example, Exs. 0125, 0127, 0200, 0226.) For instance,
Ms. Cynthia Mills of TCIA stated, ``We are uncomfortable with the open-
ended and subjective nature of the [proposed language], even though we
believe it is intended to convey anything `known to the employer, but
unusual,' associated with the work assignment'' (Ex. 0200).
Some commenters argued that it was the responsibility of the
employee in charge to survey the site and determine all hazards
associated with the work. (See, for example, Exs. 0163, 0177, 0178,
0201.) Consumers Energy's submission typified these comments:
The computer-generated job assignment will contain information
related to the location, circuit, and task to be accomplished but no
information related to unique hazards of the assignment. It is
critical that the employees on the job site survey the site and
identify all hazards upon arrival at the site. Removing that
responsibility from them would create a false sense of security and
a less than desirable knowledge of the hazards present. Safety
manuals and written procedures provide general information on
hazards that are typically expected in transmission and distribution
work. It is the responsibility of the employee in charge to survey
the site and identify all hazards upon arrival at the site. [Ex.
0177]
After carefully considering the evidence in the record, OSHA
concludes that job briefings are important for ensuring the safety of
employees performing work covered by the final rule and that the
employer needs to provide adequate information to employees in charge
so that a complete job briefing can be conducted. However, OSHA also
decided to address
[[Page 20373]]
the concerns of commenters that the proposed rule was overly broad or
open ended. To this end, OSHA decided to require the employer to
provide the employee in charge of the job with all available
information that relates to the determination of existing
characteristics and conditions required by Sec. 1926.950(d). Thus,
final Sec. 1926.952(a)(1) requires the employer, in assigning an
employee or a group of employees to perform a job, to provide the
employee in charge of the job with all available information that
relates to the determination of existing characteristics and conditions
required by Sec. 1926.950(d).
The Agency notes that final paragraph (a)(1) requires the employer
to provide the employee in charge with two types of available
information, as noted in Sec. 1926.950(d): (1) Available information
on the characteristics of electric lines and equipment, and (2)
available information on the conditions of the installation. The Agency
also notes that, because Sec. 1926.950(d) limits the determination of
characteristics and conditions only to characteristics and conditions
that relate to the safety of the work to be performed, this same
limitation extends to information that must be provided under final
Sec. 1926.952(a)(1). As such, information on the characteristics of
electric lines and equipment that must be provided under the final rule
(including, for instance, the nominal voltage of lines and equipment,
the maximum switching transient voltages, and the presence of hazardous
induced voltage) is critical to the selection of proper safety-related
work practices and protective equipment.\86\ For example, for an
employee to select the minimum approach distance required by final
Sec. 1926.960(c)(1), he or she needs to know, at a minimum, the
nominal voltage on the energized parts. Depending on the employer's
established minimum approach distances, the employee also may need to
know the maximum transient overvoltage at the worksite. Similarly, an
employee needs to know the employer's estimate of incident energy for
electric equipment so that he or she can select protective equipment
with an appropriate arc rating as required by final Sec.
1926.960(g)(5).
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\86\ In fact, these are the types of information that commenters
argued employers should provide. (See, for example, Exs. 0186, 0219;
Tr. 402-403, 1373.)
---------------------------------------------------------------------------
Information on the conditions of the installation that must be
provided under the final rule (including, for instance, the condition
of protective grounds and equipment grounding conductors, the condition
of poles, and environmental conditions relative to safety) also is
critical because that information can facilitate the employees'
assessment of conditions at the worksite and enable the employees to
take appropriate protective measures. For example, an employer may know
of defects in a wood pole on which employees are to work because it has
a pole-inspection program or has received reports that the pole had
defects. Information on such defects can help employees ascertain
whether the pole is safe to climb as required by Sec. 1926.964(a)(2).
Likewise, information from an employee or a customer that electric
equipment is making arcing noises periodically can affect the
assessment of whether the employee is exposed to hazards from flames or
electric arcs as required by Sec. 1926.960(g)(1).
Thus, the type of information that the employer must provide under
the final rule ensures that employees in charge are provided with
information relevant to selecting appropriate work practices and
protective equipment as required by the final rule. Moreover, because
final Sec. 1926.952(a)(1) links the information that the employer must
provide the employee in charge to the determination required by Sec.
1926.950(d), final Sec. 1926.952(a)(1) is neither overly broad nor
open ended.
The final rule also is narrowly tailored because it limits the
information the employer must provide to information that is available
to the employer. Under the rule, the question of whether information is
available to the employer varies depending on the type of information
at issue. First, OSHA presumes that information related to the
characteristics of electric lines and equipment is available to the
employer. Second, OSHA will deem information on the condition of the
installation to be available to the employer only when the information
is known by the employer or can be obtained by the employer from
existing records through the exercise of reasonable diligence. OSHA
does not expect employers to make inspections of worksite conditions to
determine the conditions of the installation. The Agency believes that,
in most instances, employees will gather additional information about
worksite conditions after they reach the worksite. It is nevertheless
important that employers provide employees with available information
to aid the employees' assessment of worksite conditions and as a
secondary precaution in case employees at the site fail to observe a
particular condition related to their safety.
Paragraph (a)(1) of 1926.952 applies fully to contractors.
Contractors will obtain much or all of the information that they need
to comply with Sec. 1926.952(a)(1)--especially information about the
characteristics of electric lines and equipment--through the operation
of the host-contractor provision in Sec. 1926.950(c).
Several commenters maintained that, in proposing this provision,
OSHA did not account for the way work is currently assigned to
employees. (See, for example, Exs. 0128, 0163, 0177, 0178, 0201.) For
instance, Mr. James Shill of ElectriCities noted that small towns often
assign work through a town manager who has insufficient knowledge of
the electrical system to provide the required information (Ex. 0178).
Further, Mr. James Gartland of Duke Energy described how the process
commonly used to assign work to employees at many utilities was at odds
with the proposal:
Requiring a representative of the employer (a manager or
supervisor) to provide employees with information necessary to
perform a job safely for every job is inconsistent with the use of
technology in work management and scheduling. Today's utility
workers drive vehicles equipped with computers with wireless
communications. They receive job assignments throughout the day from
the computer. There frequently is no direct supervisor-employee
interface to discuss specific work assignments. The computer-
generated job assignment will contain information related to the
location, circuit, and task to be accomplished but no information
related to unique hazards of this assignment. . . .
It is also inconsistent with industry practices to expect a
supervisor/manager to conduct a pre-job briefing at the beginning of
the day as mentioned in the Note [to proposed Sec. 1926.952(a)(1)].
Many utilities have employees who report directly to work locations
where their supervisor/manager is not present. They are expected to
do a pre-job briefing and to assess hazards on their own. There is
no company manager/supervisor at the work location to do that
assessment. [Ex. 0201]
Some of these commenters also recommended that the Agency make it clear
(1) that the rule does not require a face-to-face exchange of
information and (2) that the exchange can be provided through work
orders or in conjunction with training, safety manuals, and written
procedures. (See, for example, Exs. 0177, 0201.)
OSHA appreciates these commenters' concerns and therefore changed
the heading for paragraph (a)(1) to read ``Information provided by the
employer'' to help clarify that a separate briefing or face-to-face
discussion
[[Page 20374]]
between the employer and the employee in charge is not required. The
Agency recognizes that assignments are made through a wide range of
mechanisms that do not always provide for face-to-face contact between
the employer and the employees performing the work. The rule does not
require such contact. The employer is free to use any mechanism that
provides the required information before the employees begin their
assignment. For example, information could be provided through radio
communication with the employee in charge, through a written work
order, or through a computer-generated assignment conveyed
electronically. Some of this information may be provided through
training, in a safety manual, or through written work procedures.
However, the Agency will deem such information as meeting paragraph
(a)(1) only if it effectively communicates the information about the
particular job in question to the employee in charge and if employers
respond to these employees' questions about this information as it
relates to the particular job in question.
Some commenters suggested that OSHA add certain explicit language
to the requirement. (See, for example, Exs. 0125, 0127, 0149, 0169,
0171.) For instance, several commenters recommended revising the rule
to read: ``In assigning an employee or group of employees to perform a
job, the employer shall provide the employee in charge of the job with
any additional information known by the employee's supervisor that
could affect the safety of the job before the start of the work'' (Exs.
0125, 0127, 0149). Other commenters recommended that OSHA clarify that
the employer need only provide the information once for work lasting
long periods of time (Exs. 0169, 0171).
OSHA rejects these recommended approaches. First, the key issue is
whether the information is available to the employer, not whether the
supervisor has knowledge of the required information. Second, the final
rule requires the employer to provide required information in
connection with each job. As stated, the information must be
communicated to the employee in charge in an effective manner. Whether
a prior communication constitutes an effective communication depends on
several factors, such as, but not limited to: The time between the
prior communication and the job at hand; the manner in which the prior
communication was made; the extent to which the prior job and the
present job are similar; and whether any additional or different
information needs to be provided with respect to the present job.
OSHA is not including in the final rule the note following proposed
paragraph (a)(1). This note was to clarify the meaning of the phrase
``available information necessary to perform the job safely.'' The
final rule does not contain that phrase, and OSHA concludes that the
note is no longer necessary.
Paragraph (a)(2), which is being adopted without substantive change
from the proposal, requires the employee in charge of the job to
conduct a job briefing. This provision comes from existing Sec.
1910.269(c).
In the 2005 notice extending the comment period on the proposal,
OSHA requested comments on whether the standard should include a
requirement to document the job briefing. Comments addressing this
issue recommended that the Agency not include such a requirement in the
final rule because it would add to employers' paperwork burden without
a significant increase in safety. (See, for example, Exs. 0201, 0212.)
Considering the lack of record support for such a provision, OSHA is
not adopting a requirement to document job briefings in the final rule.
Paragraph (b), which is being adopted without substantive change
from the proposal, requires the briefing by the employee in charge to
cover: Hazards and work procedures involved, special precautions,
energy-source controls, and requirements for personal protective
equipment. This requirement also comes from existing Sec. 1910.269(c).
Under final paragraph (c)(1), the employee in charge must conduct
at least one briefing before the start of each shift. Only one briefing
in a shift is needed if all the jobs to be performed are repetitive or
similar. Additional briefings must be conducted pursuant to final
paragraph (c)(2) for work involving significant changes in routine that
might affect the safety of the employees. For example, if the first two
jobs of the day involve working on a deenergized line and the third job
involves working on energized lines with live-line tools, separate
briefings must be conducted for each type of job. It should be noted
that additional job briefings provided under paragraph (c)(2) are
separate from the job briefing provided at the start of the shift;
these briefings may not be combined. Paragraphs (c)(1) and (c)(2),
which duplicate existing Sec. 1910.269(c)(1), have been adopted
without substantive change from the proposal.
For routine work, under final paragraph (d)(1), the required
briefing need only consist of a concise discussion outlining the tasks
to be performed and how to perform them safely. However, if the work is
complicated or particularly hazardous or if the employees may not be
able to recognize and avoid the hazards involved, then a more thorough
discussion is required by paragraph (d)(2). OSHA included a note
following this paragraph to clarify that, regardless of how short the
discussion is, the briefing must still address all the topics listed in
paragraph (b).
OSHA received several comments on proposed paragraphs (d)(1) and
(d)(2). These commenters expressed concern that the proposed provisions
were vague and provided insufficient guidance on the conditions
requiring more detailed job briefings. (See, for example, Exs. 0162,
0175, 0213.) For instance, MYR Group maintained that the proposal did
not sufficiently distinguish between work that is ``routine'' and work
that is ``complicated'' (Ex. 0162; Tr. 1335), and TVA asked the Agency
to define ``complicated or particularly hazardous'' (Ex. 0213).
With final paragraphs (d)(1) and (d)(2), which were taken from
existing Sec. 1910.269(c)(2), OSHA recognizes that employees are
familiar with the tasks and hazards involved in routine work. However,
it is important to take the time to carefully discuss unusual work
situations that may pose additional or different hazards to workers.
(See also the discussion of Sec. 1926.950(b)(4) earlier in this
section of the preamble.) The Agency believes that it is important for
the briefing to be as detailed as necessary for the hazards and work
practices involved. MYR Group noted that ``the general requirement for
short discussions could . . . be applied differently depending on the
skill and qualification of the employees involved in the work rather
than the work itself'' (Ex. 0162). This comment interprets the
requirement correctly, and the Agency believes that the language in
final Sec. 1926.952(d)(1) and (d)(2), which duplicates existing Sec.
1910.269(c)(2), appropriately conveys this meaning. Accordingly, a more
detailed discussion is required ``[i]f the employee cannot be expected
to recognize and avoid the hazards involved in the job.'' In addition,
the Agency has received no formal interpretation requests related to
existing Sec. 1910.269(c)(2). Thus, OSHA concludes that the vast
majority of employers understand this provision, and the Agency is
adopting Sec. 1926.952(d) without change from the proposal.
OSHA recognizes the importance of job planning for all employees.
Although employees working alone cannot participate in formal job
[[Page 20375]]
briefings, the Agency believes that an employee who works alone needs
to plan his or her tasks as carefully and extensively as an employee
who works as part of a team. OSHA is aware of several fatalities
involving lone employees who could have benefited from better job
planning, or perhaps a briefing with the supervisor, before the job
started (Ex. 0400). In one such incident, a power line worker working
alone was repairing a broken guy. Standing on the ground, the employee
had the anchor in place and grabbed the dangling guy to attach it to
the anchor. The guy contacted a 7200-volt overhead power line that had
not been guarded or insulated. Had the employee properly planned the
job, he would have seen that the guy was close to the power line and
could have avoided the contact (id.).\87\ Therefore, paragraph (e),
which OSHA took from existing Sec. 1910.269(c)(3), provides that
employees working alone do not need to conduct job briefings, but the
employer must ensure that that the tasks are planned as if a briefing
were required. This provision is being adopted in the final rule
without change from the proposal.
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\87\ This accident can be viewed at: http://www.osha.gov/pls/imis/accidentsearch.accident_detail?id=909119.
---------------------------------------------------------------------------
4. Section 1926.953, Enclosed Spaces
Section 1926.953 contains requirements for entry into, and work in,
enclosed spaces. An ``enclosed space'' is defined in final Sec.
1926.968 as a working space, such as a manhole, vault, tunnel, or
shaft, that has a limited means of egress or entry, that is designed
for periodic employee entry under normal operating conditions, and
that, under normal conditions, does not contain a hazardous atmosphere,
but may contain a hazardous atmosphere under abnormal conditions. The
hazards posed by enclosed spaces consist of (1) limited access and
egress, (2) possible lack of oxygen, (3) possible presence of flammable
gases, and (4) possible presence of limited amounts of toxic chemicals.
The potential atmospheric hazards are caused by an enclosed space's
lack of adequate ventilation and can normally be controlled through the
use of continuous forced-air ventilation alone. Practices to control
these hazards are widely recognized and are currently in use in
electric, telecommunications, and other underground utility industries.
Such practices include testing for the presence of flammable gases and
vapors, testing for oxygen deficiency, ventilation of the enclosed
space, controls on the use of open flames, and the use of an attendant
outside the space. These practices already are required by existing
Sec. 1910.269(e) for the maintenance of electric power generation,
transmission, and distribution installations, and OSHA took the
requirements adopted in final Sec. 1926.953 from existing Sec.
1910.269(e).
Paragraph (a) of final Sec. 1926.953, which is being adopted
without substantive change from the proposal, sets the scope of the
section's provisions. Accordingly, this section applies only to the
types of enclosed spaces that are routinely entered by employees
engaged in electric power transmission and distribution work and that
are unique to underground utility work. Work in these spaces is part of
the day-to-day activities performed by some of the employees protected
by this final rule. Enclosed spaces covered by this section include,
but are not limited to, manholes and vaults that provide employees
access to electric power transmission and distribution equipment.
There are several types of spaces that are not covered by final
Sec. 1926.953 (or the corresponding general industry provisions in
final Sec. 1910.269(e)). If maintenance work is being performed in
confined spaces, it may be covered by OSHA's general industry permit-
required confined space (permit-space) standard at Sec. 1910.146; this
standard applies to all of general industry, including industries
engaged in electric power generation, transmission, and distribution
work.
In Sec. 1910.146(b), the permit-space standard defines ``confined
space'' and ``permit-required confined space.'' A confined space is a
space that: (1) Is large enough and so configured that an employee can
bodily enter and perform assigned work; and (2) Has limited or
restricted means for entry or exit (for example, tanks, vessels, silos,
storage bins, hoppers, vaults, and pits are spaces that may have
limited means of entry); and (3) Is not designed for continuous
employee occupancy. A permit-required confined space (permit space) is
a confined space that has one or more of the following characteristics:
(1) Contains or has a potential to contain a hazardous atmosphere; (2)
Contains a material that has the potential for engulfing an entrant;
(3) Has an internal configuration such that an entrant could be trapped
or asphyxiated by inwardly converging walls or by a floor which slopes
downward and tapers to a smaller cross-section; or (4) Contains any
other recognized serious safety or health hazard.
Section 1926.953 of the final rule applies to ``enclosed spaces.''
By definition, an enclosed space is a permit-required confined space
under Sec. 1926.146. An enclosed space meets the definition of a
confined space--it is large enough for an employee to enter; it has a
limited means of access or egress; and it is designed for periodic,
rather than continuous, employee occupancy under normal operating
conditions. An enclosed space also meets the definition of a permit
space--while it is not expected to contain a hazardous atmosphere, it
has the potential to contain one. OSHA also notes that the definition
of permit space in the general industry permit-space standard is
broader than the definition of enclosed space in Sec. 1926.968. For
instance, if a space contains a hazardous atmosphere under normal
conditions, that space is a permit space under Sec. 1910.146, but it
is not an enclosed space under final Sec. 1910.269 or Subpart V.
Paragraph (b)(6) of Sec. 1926.21 specifies training requirements
for employees who enter ``confined or enclosed spaces'' as defined in
Sec. 1926.21(b)(6)(ii).
When Sec. 1926.21(b)(6) applies, it requires employers to: (1)
Instruct their employees about confined-space hazards, the necessary
precautions to be taken, and protective and emergency equipment
required; and (2) comply with any specific regulations that apply to
work in dangerous or potentially dangerous areas. An enclosed space
under Sec. 1926.953 also is a confined or enclosed space under Sec.
1926.21(b)(6). However, the definition of confined or enclosed space in
Sec. 1926.21(b)(6) (like the definition of permit space in the general
industry permit-space standard) is broader than the definition of
enclosed space in Sec. 1926.968.\88\
---------------------------------------------------------------------------
\88\ Under Sec. 1926.21(b)(6)(ii), a confined or enclosed space
is any space having a limited means of egress, which is subject to
the accumulation of toxic or flammable contaminants or has an oxygen
deficient atmosphere.
---------------------------------------------------------------------------
Paragraph (b)(6) of Sec. 1926.21 applies to enclosed spaces
covered by final Sec. 1926.953 because employers covered under subpart
V are not exempt from complying with other applicable provisions in
Part 1926 (see Sec. 1926.950(a)(2)). Section 1926.953 is, therefore,
different from final Sec. 1910.269(e), which ``applies to routine
entry into enclosed spaces in lieu of the permit-space entry
requirements contained in paragraphs (d) through (k) of Sec.
1910.146.'' OSHA concludes, however, that an employer that is compliant
with Sec. 1926.953 is considered as being in compliance with existing
Sec. 1926.21(b)(6) for entry into enclosed
[[Page 20376]]
spaces covered by final Sec. 1926.953. Therefore, for all practical
purposes, Sec. 1926.953 applies to routine entry into enclosed spaces
in lieu of the requirements contained in Sec. 1926.21(b)(6). OSHA is
not including the ``in lieu of'' language in final Sec. 1926.953
because OSHA recently proposed a new standard for confined-space entry
during construction work (72 FR 67352, Nov. 28, 2007). OSHA intends to
revise Sec. 1926.953 to include appropriate ``in lieu of'' language
when it promulgates the new standard.
Under final Sec. 1926.953(a), entry into an enclosed space to
perform construction work covered by Subpart V must meet the permit-
space entry requirements of paragraphs (d) through (k) of the general
industry permit-space standard at Sec. 1910.146 when the precautions
taken under Sec. Sec. 1926.953 and 1926.965 are insufficient to
eliminate hazards in the enclosed space that endanger the life of an
entrant or could interfere with escape from the space. This requirement
ensures that employees working in enclosed spaces will be afforded
protection in circumstances in which the Subpart V provisions are
insufficiently protective.\89\
---------------------------------------------------------------------------
\89\ Section 1926.953 thus functions similarly to corresponding
provisions in Sec. 1910.146. An employer need not follow the
permit-entry requirements of Sec. 1910.146 for spaces where the
hazards have been completely eliminated, or for limited situations
in which OSHA permits the use of alternative procedures (Sec.
1910.146(c)(5) and (c)(7)). The spaces for which alternative
procedures may be used are similar to ``enclosed spaces,'' as
defined in this final rule, and the alternative procedures
themselves are similar to the procedures contained in final Sec.
1926.953 (Sec. 1910.146(c)(5); 58 FR 4462, 4486-4489, Jan. 14,
1993).
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Some employers may prefer to comply with Sec. 1910.146 instead of
Sec. 1926.953 for entry into enclosed spaces covered by Subpart V.
Because the provisions of Sec. 1910.146 protect employees entering
enclosed spaces at least as effectively as Sec. 1926.953, OSHA will
accept compliance with Sec. 1910.146 as meeting the enclosed-space
entry requirements of Sec. 1926.953. OSHA included a note to this
effect immediately following final Sec. 1926.953(o). The Agency is
adopting the note as proposed.
MYR Group opposed applying the general industry standard for permit
spaces to construction work. The company argued that subpart V should
not incorporate ``standard requirements that have already been rejected
for construction work'' and recommended that the Agency develop
requirements specific ``to electrical construction work or through the
proposed and pending separate confined space standard for
construction'' (Ex. 0162).
OSHA disagrees with this comment. The Agency developed the
enclosed-space provisions in existing Sec. 1910.269 to protect
employees during routine entry into enclosed spaces. As discussed in
detail previously, OSHA concluded that the requirements for work on
electric power generation, transmission, and distribution installations
should generally be the same regardless of whether the work is covered
by final Sec. 1910.269 or subpart V. (See the summary and explanation
for final Sec. 1926.950(a)(1), earlier in this section of the
preamble.) For the purpose of routine entry into these spaces, OSHA
concludes that it is appropriate for employers to follow the same rules
with respect to both construction and general industry work.
OSHA also is applying the general industry permit-space standard to
work in enclosed spaces when the hazards remaining in the enclosed
space endanger the life of an entrant or could interfere with escape
from the space after an employer takes the precautions required by
Sec. Sec. 1926.953 and 1926.965. This action is necessary because, as
OSHA noted in the proposed construction standard for confined spaces,
``the existing construction standard for confined and enclosed spaces
at 29 CFR 1926.21(b)(6) does not adequately protect construction
employees in confined spaces from atmospheric, mechanical, and other
hazards'' (72 FR 67354). OSHA notes, however, that the references to
the general industry standard in final Sec. 1926.953 are included as a
placeholder pending the promulgation of the confined spaces in
construction standard. OSHA intends to change these references to refer
to the construction standard when it promulgates that standard.
Paragraph (a) in final Sec. 1926.953 provides that Sec. 1926.953
does not apply to vented vaults under certain conditions. Permanent
ventilation in vented vaults prevents a hazardous atmosphere from
accumulating. However, the intake or exhaust of a vented vault could be
clogged, limiting the flow of air through the vaults. The employee in
such cases would be exposed to the same hazards presented by unvented
vaults. Additionally, mechanical ventilation for a vault so equipped
may fail to operate. To ensure that the employee is protected from the
hazards posed by lack of proper ventilation, the final rule exempts
vented vaults only if the employer determines that the ventilation is
operating to protect employees. This determination must ensure that
ventilation openings are clear and that any permanently installed
mechanical ventilating equipment is in proper working order.
Section 1926.953 also does not apply to spaces not designed for
periodic entry by employees during normal operating conditions, such as
spaces that require energy sources to be isolated or fluids to be
drained before an employee can safely enter. These types of spaces
include, but are not limited to, boilers, fuel tanks, coal bunkers, and
transformer and circuit breaker cases. As explained in the preamble to
the 1994 Sec. 1910.269 final rule, the measures required in existing
Sec. 1910.269(e) (and, by implication, final Sec. 1926.953) are not
adequate to protect employees from the various hazards posed by these
types of permit-entry confined spaces (59 FR 4364-4367).
MYR Group commented that subpart V's definition of ``enclosed
space'' was ``overly narrow and unclear'' because ``there is no
specific basis for creation of such a broad definition solely for
electrical work'' (Ex. 0162).
OSHA disagrees with this comment. The Agency derived the definition
from the definition of ``enclosed space'' in existing Sec.
1910.269(x). As explained in the preamble to the 1994 Sec. 1910.269
final rule, OSHA narrowly tailored the definition of ``enclosed space''
to the protective measures required by existing Sec. 1910.269(e) (59
FR 4364-4367). A broader definition would involve permit spaces
presenting hazards against which final Sec. 1926.953 would not offer
protection. Therefore, OSHA is adopting the definition of ``enclosed
space'' as proposed. However, OSHA is not adopting the proposed note in
final Sec. 1926.968.\90\ The proposed note, which appears in existing
Sec. 1910.269(x), describes types of spaces that are enclosed, but
that do not meet the definition of ``enclosed space,'' and explains
that such spaces meet the definition of permit spaces in Sec. 1910.146
and that entries into those spaces must conform to that standard.
Although the types of spaces described in the proposed note do not meet
the definition of ``enclosed space'' in either the general industry or
construction standard, Sec. 1910.146 does not apply to confined-space
entry during construction work. Consequently, the final rule does not
include the note to the definition of ``enclosed space'' in final Sec.
1926.968. OSHA intends to revise Sec. 1926.968 to include an
appropriate note to the definition of ``enclosed
[[Page 20377]]
space'' when it promulgates the new standard for confined-space entry
during construction work.
---------------------------------------------------------------------------
\90\ OSHA is not removing the existing note to that definition
from final Sec. 1910.269(x).
---------------------------------------------------------------------------
Paragraph (b), which is being adopted without substantive change
from the proposal, contains the general requirement that employers
ensure the use of safe work practices for entry into, and work in,
enclosed spaces and for rescue of employees from such spaces. These
safe work practices ensure that employees are protected against hazards
in the enclosed space and include, among others, the practices
specified in paragraphs (e) through (o).
Paragraph (c), which is being adopted without substantive change
from the proposal, requires each employee who enters enclosed spaces,
or who serves as an attendant, to be trained in the hazards associated
with enclosed-space entry and in enclosed-space entry and rescue
procedures. This training must ensure that employees are trained to
work safely in enclosed spaces and that they will be knowledgeable of
the rescue procedures in the event that an emergency arises within the
space.
Paragraph (d), which is being adopted without change from the
proposal, requires that the employer provide equipment that will assure
the prompt and safe rescue of employees from the enclosed space. This
requirement is necessary to ensure that employees who are injured in
enclosed spaces will be retrieved from the spaces. The equipment must
enable a rescuer to remove an injured employee from the enclosed space
quickly and without injury to the rescuer or further harm to the
injured employee. A harness, lifeline, and self-supporting winch can
normally be used for this purpose.
Mr. Leo Muckerheide with Safety Consulting Services recommended
that, because of the risk of arc hazards, OSHA should explicitly
require nonconductive and flame-resistance-rated rescue equipment that
meets ASTM F887, Standard Specifications for Personal Climbing
Equipment (Ex. 0180). He argued that the general industry confined
space standard does not protect against arc-flash and electric-shock
hazards and contrasted proposed paragraph (d) with provisions in
proposed Sec. 1926.960 that do require protection from these hazards
(id.).
OSHA rejects this recommendation. First, work in enclosed spaces
does not always pose arc-flash or electric-shock hazards. Sometimes,
employees enter spaces to take readings or perform inspections; during
these activities these hazards are unlikely to be present,\91\ or there
may be no energized electric equipment present.
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\91\ It is possible under certain circumstances that employees
taking readings or performing inspection activities could be exposed
to arc-flash hazards. See the discussion of arc-flash hazard
assessment under the summary and explanation for final Sec.
1926.960(g)(1), later in this section of the preamble.
---------------------------------------------------------------------------
Second, addressing arc-flash and electric-shock hazards in Sec.
1926.953 would be unnecessarily duplicative, as these hazards are more
appropriately addressed in Sec. 1926.960, which applies to work on or
near exposed live parts. When work is performed within reaching
distance of exposed energized parts of equipment, final Sec.
1926.960(f) requires the employer to ensure that each employee removes,
or renders nonconductive, all exposed conductive articles, unless such
articles do not increase the hazards associated with contact with the
energized parts. This provision covers conductive articles on
harnesses. Paragraph (c)(1)(iii) of final Sec. 1926.960 requires the
employer to ensure that employees do not take conductive objects, such
as conductive lifelines, closer to energized parts than the employer's
established minimum approach distances, unless the live parts or
conductive objects are insulated.\92\ Because, in a rescue situation,
the attendant would not have control over how close the lifeline got to
exposed energized parts, any lifeline would have to be insulated, or
the live parts would have to be insulated, to protect the attendant and
the entrant against electric shock. Paragraph (g)(1) of final Sec.
1926.960 requires the employer to assess the workplace to determine if
each employee is exposed to hazards from flames or electric arcs. This
assessment can guide the selection of rescue equipment that can effect
safe rescue when employees are exposed to these hazards. If there is a
risk that an electric arc could occur in an enclosed space, then the
rescue equipment must be capable of withstanding that hazardous
condition.
---------------------------------------------------------------------------
\92\ There is a third exception associated with live-line
barehand work, which is generally inapplicable in enclosed spaces.
---------------------------------------------------------------------------
Some conditions within an enclosed space, such as high temperature
and high pressure, make it hazardous to remove a cover from the space.
For example, if high pressure is present within the space, the cover
could be blown off in the process of removing it. Paragraph (e), which
is being adopted without substantive change from the proposal, protects
against these hazards by requiring a determination of whether it is
safe to remove the cover. This determination must include checking for
the presence of any atmospheric pressure or temperature differences
(generally between the inside and outside of the enclosed space) and
evaluating whether there might be a hazardous atmosphere in the space.
Furthermore, any condition making it unsafe for employees to remove the
cover must be eliminated (that is, reduced to the extent that it is no
longer unsafe) before the cover is removed. A note following paragraph
(e) clarifies that this determination may consist of checking the
conditions that might foreseeably be inside the enclosed space. For
example, the cover could be checked to see if it is hot and, if it is
fastened in place, it could be loosened gradually to release any
residual pressure. The note also clarifies that, to evaluate whether
there might be a hazardous atmosphere in the space, an evaluation needs
to be made of whether conditions at the site could cause a hazardous
atmosphere to accumulate in the space.
Paragraph (f), which is being adopted without substantive change
from the proposal, requires that, when covers are removed, openings to
enclosed spaces be promptly guarded to protect employees from falling
into the space and to protect employees in the enclosed space from
being injured by objects entering the space. The guard could be a
railing, a temporary cover, or any other barrier that provides the
required protection.
Paragraph (g), which is being adopted without substantive change
from the proposal, prohibits employees from entering enclosed spaces
that contain a hazardous atmosphere unless the entry conforms to the
general industry permit-space standard at Sec. 1910.146. Accordingly,
if an entry is to be made while a hazardous atmosphere is present in
the enclosed space, the entry must conform to the general industry
permit-required confined spaces standard at Sec. 1910.146.\93\ Once
the hazardous atmosphere is removed (for example, by ventilating the
enclosed space), employees may enter the enclosed space following the
provisions in Sec. 1926.953.
---------------------------------------------------------------------------
\93\ As stated previously, the references to the general
industry standard in final Sec. 1926.953 are included as a
placeholder pending the promulgation of the confined spaces in
construction standard. OSHA intends to change these references to
refer to the construction standard when it promulgates that
standard.
---------------------------------------------------------------------------
The use of the term ``entry'' in this paragraph of Sec. 1926.953
is consistent with the use of that term in Sec. 1910.146, and OSHA
proposed to include the Sec. 1910.146 definition of ``entry'' in
Subpart V. Two commenters objected to the proposed definition of
``entry'' on the basis that the definition would
[[Page 20378]]
prevent them from hanging a tag in the chimney of a manhole with a
fault (Exs. 0157, 0227). Consolidated Edison Company of New York
(ConEd) described their opposition to the proposed definition of
---------------------------------------------------------------------------
``entry'' as follows:
In order to comply with Sec. 1910.269(t)(7)(i), Con Edison
utilizes an identification system for structures that have cable and
joint abnormalities. This system requires the identifying crew to
hang a tag (in our nomenclature, a D-Fault tag) in the chimney of
the manhole. This red tag is a clear indication to any other
personnel who may attempt to enter the structure that the entry
should not be made. This tagging system is an integral part of our
compliance method and of protecting our employees. If OSHA adds the
definition as proposed, it will prevent us from breaking the plane
of the opening and hence prevent us from hanging the tag. This
process will reduce, not increase the safety of our employees and as
such will have the opposite effect from what OSHA is trying to
accomplish. [Ex. 0157]
EEI recommended instead that ``that the Agency grant electric utilities
an [exemption from] the definition for [Sec. 1910.269](t)(7)
Protection against faults, to allow utilities to properly comply'' (Ex.
0227).
OSHA rejects ConEd's recommendation. Paragraph (g) of final Sec.
1926.953 does not preclude employers from hanging tags in the chimney
of a manhole with a fault. To the contrary, the rule permits entry into
an enclosed space that contains a hazardous atmosphere if entry
conforms to the general industry permit-space standard. Moreover, if
there is no hazardous atmosphere in the space, employees may enter when
the entry conforms to Sec. 1926.953. OSHA concludes that the proposed
definition is, therefore, appropriate as it applies to final Sec.
1926.953 and the corresponding requirements in final Sec. 1910.269(e).
OSHA also rejects EEI's recommendation, because it is unnecessary.
The definition of ``entry,'' as proposed and adopted, applies only to
the use of that term in final Sec. Sec. 1910.269(e) and 1926.953. The
definition does not apply to final Sec. 1910.269(t)(7)(i) or Sec.
1926.965(h)(1). (See the summary and explanation for final Sec.
1926.965(h)(1) for the response to ConEd's and EEI's concerns that this
provision, and its counterpart in Sec. 1910.269(t)(7)(i), would
preclude an employer from hanging a tag in the chimney of a manhole or
vault to indicate the presence of a faulted cable.)
Paragraph (h), which has been adopted with clarifying revisions
from the proposal, requires an attendant with first-aid training,
including CPR, to be immediately available outside the enclosed space
to provide assistance when a hazard exists because of traffic patterns
in the area of the opening used for entry.\94\ This paragraph does not
prohibit the attendant from performing other duties outside the
enclosed space, as long as those duties do not distract the attendant
from monitoring employees who are in the enclosed space (entrants) and
ensuring that it is safe to enter and exit the space. This paragraph
has two purposes: To protect the entrant from hazards involving traffic
patterns while the entrant is entering or exiting the space and to
provide assistance in an emergency.
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\94\ Typically, workers direct traffic away from the work area
using traffic control devices, as required by Sec. 1926.967(g).
When the resultant traffic patterns (that is, the flow of traffic)
could bring vehicles close to the enclosed space entrance (for
example, when the work reduces the number of traffic lanes), the
employer must provide an attendant.
---------------------------------------------------------------------------
Mr. Frank Brockman with Farmers Rural Electric Cooperative
Corporation noted that attendants should never be allowed to enter
manholes or confined spaces (Ex. 0173).
The final rule, like the proposal, requires the attendant to remain
immediately available outside the enclosed space during the entire
entry. If the attendant were permitted to enter the enclosed space
during entry, he or she might not be able to assist the entrant. For
example, if traffic-pattern hazards are present in the area of the
opening to the enclosed space and if the attendant enters the space,
then both the attendant and the workers he or she is protecting would
be vulnerable upon leaving the enclosed space because no one would be
present to minimize or control the traffic-pattern hazards. Therefore,
the final rule specifies that the attendant must remain outside the
enclosed space during the entire entry process. It should be noted that
the rescue equipment required by paragraph (d) will enable the entrant
to rescue the entrant from the space before administering any necessary
first aid.
Mr. Lee Marchessault of Workplace Safety Solutions recommended that
paragraph (h) require the attendant to be trained in CPR, in addition
to first-aid training (Ex. 0196; Tr. 575). He noted that the electrical
hazards in the space, as well as other hazards, might present a need
for CPR (Tr. 598).
OSHA is clarifying paragraph (h) in the final rule. The proposed
rule required training in first aid, including CPR, so that the
attendant could provide emergency assistance in case of injury. This is
the type of training required by Sec. 1926.951(b). However, the
reference to Sec. 1926.951(b)(1) in the proposal likely caused Mr.
Marchessault to misinterpret the requirement. Therefore, the Agency
included a definition of ``first-aid training'' in Sec. 1926.968 in
the final rule. That definition states that first-aid training is
training in the initial care, including cardiopulmonary resuscitation
(which includes chest compressions, rescue breathing, and, as
appropriate, other heart and lung resuscitation techniques), performed
by a person who is not a medical practitioner, of a sick or injured
person until definitive medical treatment can be administered. The
definition clarifies that, wherever first-aid training is required by
the final rule, CPR training must be included.\95\ OSHA also dropped
the proposed cross-reference to Sec. 1926.951(b)(1), as it is no
longer necessary.
---------------------------------------------------------------------------
\95\ The definition also clarifies that CPR training includes
resuscitation techniques both for the heart and for the lungs.
---------------------------------------------------------------------------
Mr. Anthony Ahern with the Ohio Rural Electric Cooperatives
recommended that an attendant always be available for enclosed-space
operations, not just when traffic-pattern hazards exist (Ex. 0186).
OSHA is not adopting this recommendation. By definition, an
enclosed space contains a hazardous atmosphere only under abnormal
conditions. The Agency previously concluded that these spaces do not
present the type of atmospheric hazards that warrant the presence of an
attendant after the employer takes precautions such as those required
by Sec. 1926.953. (See, for example, 58 FR 4485-4488.) In addition, as
provided in final Sec. 1926.953(a), when a hazardous atmosphere is
present after the employer takes the precautions required by this
section, paragraphs (d) through (k) of OSHA's general industry permit-
space standard, Sec. 1910.146, which do require attendants, apply.
Therefore, the Agency concluded that, when paragraph (h) applies, the
only hazards (other than electrical) that necessitate the presence of
an attendant while work is being performed in an enclosed space are
traffic-pattern hazards in the area of the opening used for entering
and exiting the enclosed space. OSHA notes that even if no traffic-
pattern hazards are present, an attendant is required under Sec.
1926.965(d) of the final rule while work is being performed in a
manhole or vault containing energized electric equipment. A note to
this effect follows final Sec. 1926.953(h).
Mr. Leo Muckerheide with Safety Consulting Services commented that
the purpose of proposed paragraph (h) was confusing because the purpose
of the requirement as stated in the first
[[Page 20379]]
sentence--that is, protecting entrants from traffic-pattern hazards--
differs from the attendant's duties as noted in the second sentence--
monitoring employees within the space. He recommended that OSHA revise
the second sentence of that paragraph as follows:
That person is not precluded from performing other duties
outside the enclosed space if these duties do not distract the
attendant from monitoring the traffic patterns outside the enclosed
space. [Ex. 0180]
OSHA rejects Mr. Muckerheide's recommended language. Part of the
attendant's duty to monitor employees in the space is to warn entrants
preparing to exit an enclosed space about hazards involving traffic
patterns. If the attendant is watching traffic patterns instead of
monitoring the entrant, the entrant might not receive warnings about
that traffic before exiting the space. When the entrant is ready to
exit the space, the attendant can then monitor or direct traffic and
let the entrant know when it is safe to exit the space. On the other
hand, OSHA agrees with Mr. Muckerheide that the duties of the attendant
may not be clear from the language of the provision as proposed.
Therefore, OSHA revised the language in final paragraph (h) to make it
clear that ensuring that it is safe to enter and exit an enclosed space
is part of the attendant's duties.
Paragraph (i), which is being adopted without change from the
proposal, requires that test instruments used to monitor atmospheres in
enclosed spaces have a minimum accuracy of 10 percent and
be kept in calibration. This provision will ensure that test
measurements are accurate so that hazardous conditions will be detected
when they arise. The accuracy of instruments used for testing the
atmosphere of these spaces is important for employee safety, and
calibration is critical to test-instrument accuracy. As noted in the
preamble to the proposal and to the 1994 Sec. 1910.269 final rule,
OSHA considers 10 percent to be the minimum accuracy needed
to detect hazardous conditions reliably (70 FR 34849, 59 FR 4369).
Two commenters objected to the proposed requirements (Exs. 0128,
0227). EEI recommended that the standard only require ``that test
instruments be kept in calibration using the recommendations set forth
by the specific manufacturer'' and not address accuracy (Ex. 0227). Mr.
Mark Spence of Dow Chemical Company argued that OSHA did not
demonstrate that the provision was necessary or that calibration has
been a problem (Ex. 0128). He stated that the general industry permit-
space standard did not contain such a requirement, but only requires
that the atmospheres in spaces be monitored (id.).
OSHA rejects the recommendations from these two commenters. Mr.
Spence is incorrect. The permit-space standard requires test equipment
to be calibrated. As mentioned previously, Sec. 1910.146(c)(5)
contains requirements for alternative procedures for permit spaces that
are analogous to the enclosed-space requirements contained in Sec.
1926.953 of the final rule. Paragraph (c)(5)(ii)(C) of Sec. 1910.146
requires atmospheric testing using a calibrated test instrument.
Paragraph (d) of Sec. 1910.146, which contains requirements for
permit-required confined-space programs, specifies, at paragraph
(d)(4)(i), that employers maintain ``[t]esting and monitoring equipment
needed to comply with paragraph (d)(5).'' As OSHA concluded in the
preamble to the general industry permit-space final rule, if test
equipment ``is properly selected, calibrated, and maintained . . ., the
testing and monitoring needs for entry and work in permit-required
confined spaces can be effectively met'' (58 FR 4498). Thus, the use of
inaccurate or uncalibrated test instruments does not meet the permit-
space standard.
OSHA rejects EEI's recommendation that the standard not address
accuracy. The Agency concluded in the 1994 Sec. 1910.269 rulemaking
that the requirement for test instruments to be accurate within 10 percent was reasonably necessary for the protection of
employees (59 FR 4369). OSHA continues to believe that the accuracy of
instruments used for testing the atmosphere of these spaces is
important, and EEI offered no evidence to the contrary.
OSHA also rejects EEI's assertion that equipment calibrated to
manufacturers' specification is an adequate substitute for test
equipment accuracy. Calibration and accuracy are not synonymous. A
calibrated test instrument is one that has been compared to a standard
reference source for the substance (oxygen, or a toxic or flammable
gas) to be measured. Accuracy is a measure of the precision with which
the substance can be measured. An oxygen meter, for example, with an
accuracy of 20 percent could give a reading as much as 20
percent above or below the actual oxygen content even when it is
properly calibrated. It is evident that this calibrated instrument
would not meet the final rule's minimum accuracy requirement of 10 percent.
Several commenters recommended that OSHA include in the final rule
specific requirements on how to keep instruments calibrated. (See, for
example, Exs. 0196, 0211, 0227.) For instance, ISEA recommended that
OSHA refer employers and employees to the Agency's Safety and Health
Information Bulletin ``Verification of Calibration for Direct-Reading
Portable Gas Monitors'' (SHIB 05-04-2004) for information on this topic
(Ex. 0211).\96\ As noted earlier, EEI recommended that test instruments
be calibrated in accordance with manufacturers' instructions (Ex.
0227). Another commenter, Mr. Lee Marchessault with Workplace Safety
Solutions agreed that the standard should require calibration in
accordance with manufacturers' instructions because test instruments
``may go out of calibration 2 hours after being calibrated'' (Ex.
0196).
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\96\ This document is available on the OSHA Web site at: http://www.osha.gov/dts/shib/shib050404.pdf.
---------------------------------------------------------------------------
OSHA is not adopting these recommendations. The Agency decided to
adopt a performance-based approach for this requirement to provide
compliance flexibility. OSHA considers a test instrument to be ``kept
in calibration,'' as required by paragraph (i), when the employer
follows the manufacturers' calibration instructions or other reasonable
guidelines for the calibration of the instrument involved. The Agency
anticipates that most employers will follow manufacturers'
instructions. However, these instructions might not be available if the
manufacturer has gone out of business. In addition, there are other
sources of information on proper calibration methods. As mentioned
earlier, ISEA noted one appropriate source of information that can be
used instead, although the Agency decided against including a reference
to that publication in the final rule.
Mr. Kevin Taylor with the Lyondell Chemical Company asked for
clarification of the requirement that test instruments have a minimum
accuracy of 10 percent (Ex. 0218). He inquired whether that
level of accuracy was needed for each measured gas or whether the
accuracy measurement was based on total detection of gases.
OSHA clarifies that the accuracy required by the final rule
pertains to each gas being measured. Moreover, the accuracy of the
instrument must be determined based on the threshold quantities that
would make the atmosphere within the space hazardous (as per the
definition of ``hazardous atmosphere'' in Sec. 1926.968). For
[[Page 20380]]
example, a particular enclosed space could potentially contain
hazardous levels of methane, carbon dioxide, and carbon monoxide, as
well as insufficient levels of oxygen. The instrument or instruments
used to test the space in this example must be accurate to within
10 percent of: (1) A 0.5-percent concentration of methane
(which is 10 percent of its lower flammable limit),\97\ (2) the
permissible exposure limits (PELs) contained in Subpart D for both
carbon dioxide and carbon monoxide (9,000 and 55 mg/m\3\,
respectively), and (3) atmospheric concentrations of oxygen at 19.5
percent. It is important for the test instrument to be accurate near
the threshold because those are the critical values for determining
whether or not a space is hazardous.
---------------------------------------------------------------------------
\97\ The lower flammable limit for methane is 5 percent, and 10
percent of that value is 0.5 percent.
---------------------------------------------------------------------------
As noted earlier, because of the lack of adequate ventilation,
enclosed spaces can accumulate hazardous concentrations of flammable
gases and vapors, or an oxygen deficient atmosphere could develop. It
is important to keep concentrations of oxygen and flammable gases and
vapors at safe levels; otherwise, an explosion could occur while
employees are in the space, or an oxygen deficiency could lead to
suffocation of an employee. Toward these ends, paragraphs (j) through
(o) of the final rule address the testing of the atmosphere in the
space and ventilation of the space. OSHA notes that the specific
testing requirements in paragraphs (j), (k), and (o) must be met
irrespective of the results of the employer's evaluation performed
under paragraph (e). The evaluation performed under paragraph (e)
serves only to ensure that it is safe to remove the cover and will not
determine whether an enclosed space contains a hazardous atmosphere.
The testing required by paragraphs (j), (k), and (o) will ensure, as
required by paragraph (g), that employees not enter an enclosed space
while it contains a hazardous atmosphere unless they follow the
requirements of the general industry permit-space standard.
Paragraph (j), which is being adopted without substantive change
from the proposal, requires that, before an employee enters an enclosed
space, the atmosphere in the space be tested for oxygen deficiency and
that the testing be done with a direct-reading meter or similar
instrument capable of collecting and immediately analyzing data samples
without the need for off-site evaluation. Continuous forced air-
ventilation is permitted as an alternative to testing. However,
procedures for such ventilation must ensure that employees are not
exposed to the hazards posed by oxygen deficiency.\98\ (See also
paragraph (m) for additional requirements relating to ventilation of
the space.)
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\98\ The definition of ``hazardous atmosphere'' determines what
concentrations of oxygen are considered hazardous. (See Sec.
1926.968.) Paragraph (g) of final Sec. 1926.953 prohibits entry
into an enclosed space while a hazardous atmosphere is present.
---------------------------------------------------------------------------
Paragraph (k), which is being adopted without change from the
proposal, requires that, before employees enter an enclosed space, the
internal atmosphere of the space be tested for flammable gases and
vapors. If the results of the test indicate the presence of a hazardous
atmosphere, employees may not enter under the procedures specified by
Sec. 1926.953. (See Sec. 1926.953(g).) So that the results are
accurate and relevant to the atmosphere in the space at the time of
employee entry, testing must be performed with a direct-reading meter,
or similar instrument, capable of collecting and immediately analyzing
data samples without the need for off-site evaluation. The flammability
test required by this paragraph must be performed after oxygen testing
and ventilation required by paragraph (j) demonstrate that the enclosed
space has sufficient oxygen for an accurate flammability test.
If flammable gases or vapors are detected or if an oxygen
deficiency is found, paragraph (l), which is being adopted without
substantive change from the proposal, requires the employer to provide
forced-air ventilation to maintain safe levels of oxygen and to prevent
a hazardous concentration of flammable gases or vapors from
accumulating. As an alternative to ventilation, an employer may use a
continuous monitoring system that ensures that no hazardous atmosphere
develops and no increase in flammable gas or vapor concentrations above
safe levels occur if flammable gases or vapors are detected at safe
levels. The language in the final rule clarifies that the monitoring
must ensure that concentrations of flammable gases and vapors do not
increase above safe levels (as opposed to not increasing at all). The
definition of hazardous atmosphere contains guidelines for determining
whether the concentration of a substance is at a hazardous level. OSHA
is including a note to this effect after paragraph (l). An identical
note appears after paragraph (o). OSHA changed the title of this
paragraph in the final rule to ``Ventilation, and monitoring for
flammable gases or vapors'' to accurately reflect the contents of the
paragraph.
Paragraph (m), which is being adopted without substantive change
from the proposal, contains specific requirements for the ventilation
of enclosed spaces. When forced-air ventilation is used, it must begin
before entry is made and must be maintained long enough for the
employer to be able to demonstrate that a safe atmosphere exists before
employees are allowed to enter the space. To accomplish this, the
ventilation must be maintained long enough to purge the atmosphere
within the space of hazardous levels of flammable gases and vapors and
to supply an adequate concentration of oxygen.
OSHA decided not to specify a minimum number of air changes before
employee entry into the enclosed space is permitted. Instead, the
Agency places the burden on the employer to ensure that the atmosphere
is safe before such entry. The employer can discharge this duty either
by testing to determine the safety of the atmosphere in the space or by
a thorough evaluation of the air flow required to make the atmosphere
safe. In this way, the safety of employees working in enclosed spaces
will not be dependent on speculation by a supervisor or an
employee.\99\
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\99\ This discussion, which also appeared in the preamble to the
proposal, responds to one commenter's request for clarification of
how the employer could demonstrate that the atmosphere in the
enclosed space is safe (Ex. 0186).
---------------------------------------------------------------------------
Paragraph (m) also requires the air provided by the ventilating
equipment to be directed at the immediate area within the enclosed
space where employees are at work. The forced-air ventilation must be
maintained the entire time the employees are present within the space.
These provisions ensure that a hazardous atmosphere does not reoccur
where employees are working.
NIOSH recommended that ``the atmosphere in a confined space be
tested before entry and monitored continuously while workers are in the
confined space to determine if the atmosphere has changed due to the
work being performed'' (Ex. 0130). NIOSH identified its publication
``Worker Deaths in Confined Spaces: A Summary of NIOSH Surveillance and
Investigative Findings,'' Publication No. 94-103, as evidence of the
need for continuous monitoring (id.).
As explained earlier in this section of the preamble, the final
rule requires the atmosphere in enclosed spaces to be tested before
entry. OSHA concludes, however, that continuous monitoring of enclosed
spaces is unnecessary. By
[[Page 20381]]
definition, enclosed spaces contain a hazardous atmosphere only under
abnormal conditions. Thus, enclosed spaces almost never contain the
types of conditions that will cause a hazardous atmosphere to reoccur
after employers implement the precautions required by Sec. 1926.953
(such as forced-air ventilation). If these precautions are not
sufficient to keep the atmosphere in the space safe, then the space
would not qualify for entry under Sec. 1926.953, and entry could only
proceed under the general industry permit-required confined space
standard, as specified by paragraph (a) of that section. Therefore,
OSHA has not adopted NIOSH's recommendation in the final rule.
Two commenters noted that proposed paragraph (m) might be
impossible to implement under certain conditions and recommended that
the final rule recognize these conditions (Exs. 0128, 0224). One of
these commenters, Dow Chemical Company, noted that it is not always
possible to test atmospheric conditions before entry into an enclosed
space (Ex. 0128). The other commenter, the Alabama Rural Electric
Association of Cooperatives, maintained that it was not always feasible
to use forced-air ventilation because of space constraints (Ex. 0224).
OSHA concludes that no changes to paragraph (m) are necessary. The
final rule, as with the proposal, recognizes that the enclosed-space
procedures might not adequately protect employees in some
circumstances. Paragraph (a) of the final rule requires that employers
follow the general industry permit-space standard at Sec. 1910.146
whenever the precautions required by final Sec. Sec. 1926.953 and
1926.965 are insufficient to adequately control the hazards posed by
the space. These conditions include any conditions that make complying
with those two sections in this final rule infeasible. Therefore, OSHA
is including paragraph (m) in the final rule as proposed.
To ensure that the air supplied by the ventilating equipment
provides a safe atmosphere, paragraph (n), which is being adopted
without substantive change from the proposal, requires the air supply
to be from a clean source and prohibits it from increasing the hazards
in the enclosed space. For example, the final rule prohibits
positioning the air intake for ventilating equipment near the exhaust
from a gasoline or diesel engine because doing so would contaminate the
atmosphere in the enclosed space.
The use of open flames in enclosed spaces is safe only when
flammable gases or vapors are not present in hazardous quantities. For
this reason, final paragraph (o), which is being adopted without change
from the proposal, requires additional testing for flammable gases and
vapors if open flames are to be used in enclosed spaces. The tests must
be performed immediately before the open-flame device is used and at
least once per hour while the device is in use. More frequent testing
is required if conditions indicate the need for it. Examples of such
conditions include the presence of volatile flammable liquids in the
enclosed space and a history of hazardous quantities of flammable
vapors or gases in such a space.
5. Section 1926.954, Personal protective equipment
Final Sec. 1926.954 contains requirements for personal protective
equipment (PPE). Paragraph (a), which is being adopted without change
from the proposal, clarifies that PPE used by employees during work
covered by Subpart V must meet Subpart E of Part 1926.
Mr. Daniel Shipp with ISEA recommended that OSHA update the
national consensus standards incorporated by reference in Subpart E
(Ex. 0211). He pointed out, for example, that Sec. 1926.100, which
covers head protection, incorporates two outdated ANSI standards,
namely ANSI Z89.1-1969, Safety Requirements for Industrial Head
Protection, and ANSI Z89.2-1971, Industrial Protective Helmets for
Electrical Workers (id.).
Updating the national consensus standards incorporated by reference
in Subpart E is beyond the scope of this rulemaking, so OSHA is not
adopting Mr. Shipp's recommendation in this final rule. However, on
June 22, 2012, OSHA published a direct final rule updating its head
protection standard in Subpart E (77 FR 37587-37600).\100\ On November
16, 2012, OSHA published a notice confirming the effective date of the
direct final rule (77 FR 68684; effective date--September 20, 2012).
That rulemaking action updates the national consensus standard for head
protection incorporated in Subpart E of the construction standards as
recommended by Mr. Shipp.
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\100\ OSHA also updated its consensus standards for general
industry and maritime on September 9, 2009 (74 FR 46350). The Agency
again updated the general industry and maritime standards with the
June 22, 2012, direct final rule because OSHA published the proposal
for the 2009 final rule before ANSI updated its head-protection
standard that year.
---------------------------------------------------------------------------
The preamble to the proposal noted that OSHA had separately
proposed regulatory language for the general PPE standards to clarify
that employers are generally responsible for the cost of PPE (70 FR
34868-34869; 64 FR 15402, Mar. 31, 1999). OSHA published the final rule
on employer payment for PPE on November 15, 2007 (72 FR 64342). The
final rule on employer payment for PPE requires employers to pay for
the PPE used to comply with OSHA standards, with a few exceptions. The
exceptions include: (1) Everyday clothing, such as longsleeve shirts,
long pants, street shoes, and normal work boots; and (2) ordinary
clothing, skin creams, or other items, used solely for protection from
weather, such as winter coats, jackets, gloves, parkas, rubber boots,
hats, raincoats, ordinary sunglasses, and sunscreen. (See Sec. Sec.
1910.132(h) and 1926.95(d).)
Employers must pay for fall protection equipment and other PPE used
by employees in compliance with this final rule to the extent required
by Sec. 1926.95(d), the general construction rule regarding payment
for PPE, or Sec. 1910.132(h), the general rule regarding payment for
PPE in general industry. (See 72 FR 64369 (explaining that the general
PPE-payment provisions ``apply to all OSHA standards requiring PPE'');
see also the March 16, 2009, letter of interpretation to Mr. William
Mattiford \101\ (employers must pay for body belts, positioning straps,
and pole- and tree-climbing equipment in accordance with Sec.
1910.132(h)) and the May 1, 2008, letter to Mr. Gil Niedenthal \102\
(employers must pay for body belts and pole climbers in accordance with
Sec. 1910.132(h)).)
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\101\ The letter of interpretation to Mr. Mattiford is available
at http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=27014.
\102\ The letter of interpretation to Mr. Niedenthal is
available at http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=27091.
---------------------------------------------------------------------------
OSHA included a note to final Sec. 1926.954(a) to indicate that
Sec. 1926.95(d) sets employer payment obligations for the PPE required
by subpart V, including, but not limited to, the fall protection
equipment required by final Sec. 1926.954(b), the electrical
protective equipment required by final Sec. 1926.960(c), and the
flame-resistant and arc-rated clothing and other protective equipment
required by final Sec. 1926.960(g). (See the summary and explanation
for Sec. 1926.960(g), later in this section of the preamble, for a
discussion of the issue of employer payment for flame-resistant and
arc-rated clothing.)
Paragraph (b) of the final rule sets requirements for personal fall
protection systems. Subpart M of part 1926, which sets requirements for
fall protection for
[[Page 20382]]
construction, contains provisions covering two types of personal fall
protection systems: Personal fall arrest systems, addressed in Sec.
1926.502(d), and positioning device systems, addressed in Sec.
1926.502(e). Subpart M defines a ``personal fall arrest system'' as a
system used to arrest an employee in a fall from a working level. It
consists of an anchorage, connectors, and body harness and may include
a lanyard, deceleration device, lifeline, or suitable combinations of
these. (See Sec. 1926.500(b).) Personal fall arrest systems are
designed to safely arrest the fall of an employee working on a
horizontal or vertical surface.
Subpart M defines a ``positioning device system'' as a body belt or
body harness system rigged to allow an employee to be supported on an
elevated vertical surface, such as a wall, and work with both hands
free while leaning. (See Sec. 1926.500(b).)
Positioning device systems are designed to support an employee
working on a vertical surface so that the employee can work with both
hands without falling. Proposed Subpart V contained requirements for
``work positioning equipment,'' which is equivalent to ``positioning
device system'' as that term is defined in subpart M. (See the summary
and explanation for final Sec. 1926.954(b)(2), later in this section
of the preamble.)
A third form of personal fall protection system, which is not
specifically addressed in Subpart M, is a tethering, restraint, or
travel-restricting system. OSHA's steel erection standard in Subpart R
of Part 1926 contains requirements for ``fall restraint systems,''
which it defines as a fall protection system that prevents the user
from falling any distance. The system consists of either a body belt or
body harness, along with an anchorage, connectors and other necessary
equipment. The other components typically include a lanyard, and may
also include a lifeline and other devices. (See Sec. 1926.751.\103\)
---------------------------------------------------------------------------
\103\ The term ``fall restraint system'' as defined in Sec.
1926.751 is a broad term that includes travel-restricting equipment,
tethering systems, and other systems that prevent an employee from
falling any distance.
---------------------------------------------------------------------------
Fall restraint, tethering, and travel-restricting equipment are all
designed to prevent employees from falling, in some cases by
restraining an employee's access to unprotected edges (restraint,
tethering, and travel-restricting equipment) and in other cases by
holding the employee in place to prevent falling (restraint equipment).
IBEW recommended that the fall protection provisions in proposed
paragraph (b), and in its general industry counterpart, proposed Sec.
1910.269(g)(2), contain a reference to IEEE Std 1307, Standard for Fall
Protection for Utility Work (Ex. 0230; Tr. 904-905, 983-984). The union
noted that this is the only consensus standard addressing specific fall
protection issues for the utility industry (Ex. 0230).
OSHA agrees that this consensus standard provides useful
information to help employers comply with some provisions of the final
rule and added the IEEE standard to the list of reference documents in
Appendix G to subpart V and Appendix G to Sec. 1910.269.\104\ The
Agency is not, however, referencing IEEE Std 1307 in Sec. 1926.954 of
the final rule. OSHA made substantial changes to the fall protection
requirements in the final rule, and the IEEE standard does not reflect
all of the final rule's requirements. For example, on and after April
1, 2015, final Sec. 1926.954(b)(3)(iii)(C) generally does not permit
qualified employees to climb poles, towers, or similar structures
without fall protection. (See the summary and explanation for final
Sec. 1926.954(b)(3)(iii), later in this section of the preamble.) In
contrast, section 6.2.1 of IEEE Std 1307-2004 permits qualified
climbers to climb poles, towers, and similar structures without fall
protection (Ex. 0427).\105\
---------------------------------------------------------------------------
\104\ See the discussion of the appendices to the final rule,
later in this section of the preamble. As explained in the
appendices, the referenced national consensus standards, including
IEEE Std 1307, contain detailed specifications that employers may
follow in complying with the more performance-oriented requirements
of OSHA's final rule. However, compliance with IEEE Std 1307 is not
a substitute for compliance with Sec. 1926.954(b).
\105\ IEEE Std 1307-2004 is the most recent edition of that
consensus standard.
---------------------------------------------------------------------------
Proposed paragraph (b)(1) provided that personal fall arrest
systems had to meet the requirements of Subpart M of Part 1926.
Existing Sec. 1910.269(g)(2)(i) already contains a similar
requirement. A note following proposed paragraph (b)(1) indicated that
this provision would apply to all personal fall arrest systems used in
work covered by subpart V. OSHA is not including this note in the final
rule as it is unnecessary.
OSHA received a number of comments about proposed paragraph (b)(1).
(See, for example, Exs. 0128, 0180, 0211, 0219, 0227, 0230.) Some of
these comments generally supported the proposal, noting that there are
no situations in which work covered by Subpart V would necessitate
different requirements for fall arrest equipment than those already
found in Subpart M. (See, for example, Exs. 0219, 0227, 0230.) Mr. Mark
Spence with Dow Chemical Company supported the incorporation of subpart
M in both subpart V and Sec. 1910.269, but noted OSHA's plan to revise
the general industry fall protection standard. He recommended that
Sec. 1910.269 and subpart V eventually be revised to refer to the
updated general industry fall protection provisions:
The existing general industry standard [Sec. 1910.269] requires
personal fall arrest equipment to meet the requirements of the
construction industry fall protection standards, 29 CFR Part 1926,
Subpart M. Both Sec. 1910.269 and Subpart M were promulgated in
1994, whereas the general industry fall protection standards date
back to 1971 (and are based on earlier requirements). To take
advantage of the updated fall protection requirements in the
construction standards, OSHA chose to make them applicable to work
under this general industry standard. [Footnote omitted.]
* * * * *
Dow sees no current option for OSHA other than continuing to
refer to Subpart M, supplementing it as appropriate with new
provisions, as OSHA has done here. However, Dow urges OSHA to
proceed expeditiously with the issuance of . . . new general
industry fall protection . . . standards. Once . . . new [general
industry fall protection standards are] published as a final rule,
OSHA should revise both [Subpart V and Sec. 1910.269] to refer to
the new [provisions]. [Ex. 0126]
On May 24, 2010, OSHA proposed to revise the general industry
walking-working surfaces standards and the personal protective
equipment standards (75 FR 28862). The proposal included a new standard
for personal fall protection systems, Sec. 1910.140, which would
increase consistency between construction, maritime, and general
industry standards. When that rulemaking is finalized, OSHA will
consider whether the cross-references in subpart V and Sec. 1910.269
should be changed as recommended by Mr. Spence.
Two commenters noted that subpart M does not address arc-flash
resistance for fall arrest equipment and recommended that OSHA require
this equipment to pass arc-flash tests (Exs. 0180, 0211). Mr. Daniel
Shipp of ISEA supported arc-flash testing as follows:
We believe that workers in electric power transmission and
distribution have special requirements different from those in
general construction activities. These special requirements are
recognized as hazards associated with exposure to high-voltage
electric current. The hazard of exposure to energized electrical
sources often occurs at height[s] where personal fall arrest systems
are required. The hazard of electric arc flash has been addressed in
the ASTM F887-04 [Standard Specifications for Personal Climbing
Equipment] for full body harnesses used in fall arrest.
[[Page 20383]]
We support the inclusion of electric arc-flash resistance
requirements, referenced in ASTM F887-04, to be extended to
[include] fall arrest PPE, especially full body harnesses and shock
absorbing lanyards that are worn together as part of a complete fall
arrest system. These components would be exposed to potentially
damaging thermal shock in the event of an arc flash. The damage to
lanyards not designed to withstand a high-voltage arc flash can be
quite severe, reducing strength to levels below the factor of safety
necessary to assure arrest of a fall. Tests have been performed by
the Kinetrics high energy laboratory on high-tensile webbing, such
as that used in fall protection PPE products. Testing at exposure
levels of 40 cal/cm\2\, in accordance with the procedures in ASTM
F1958/F1958M-99 [Standard Test Method for Determining the
Ignitability of Non-flame-Resistance Materials for Clothing by
Electric Arc Exposure Method Using Mannequins], demonstrated
ignition and melting of the webbing sufficient to reduce webbing
strength by greater than 30 percent.
One common example of this hazard involves employees tied off in
bucket trucks working in close proximity to high-voltage power
lines. The fall arrest harness and lanyard are typically exposed
above the edge of the bucket where contact with electric arc flash
is possible. In the event of an incident, including a fall by
ejection out of the bucket, the strength of fall arrest components
could be severely compromised if they were exposed to a high-voltage
electric arc flash. [Ex. 0211]
Mr. Leo Muckerheide of Safety Consulting Services similarly recommended
that harnesses and lanyards used by employees working on or near
energized circuits meet ASTM F887-04, because that consensus standard
provides performance criteria for arc resistance (Ex. 0180).
OSHA recognizes that employees performing work covered by subpart V
and Sec. 1910.269 are sometimes exposed to hazards posed by electric
arcs. In fact, final Sec. Sec. 1910.269(l)(8) and 1926.960(g) are
designed to protect employees from electric arcs. In addition, the
Agency already recognized the need for work-positioning equipment to be
capable of passing a flammability test to ensure that the equipment
does not fail if an electric arc occurs. (See final Sec. Sec.
1910.269(g)(2)(iii)(G)(5) and 1926.954(b)(2)(vii)(E).) On the other
hand, in work covered by subpart V or Sec. 1910.269, personal fall
arrest equipment has broader application than work-positioning
equipment, with work-positioning equipment being used primarily on
support structures for overhead power lines. Several applications for
personal fall arrest equipment involve work that does not pose
electric-arc hazards, especially in electric power generation work
covered by Sec. 1910.269. For example, an employee working on a
cooling tower or atop a dam at an electric power generation plant would
not normally be exposed to these hazards. Consequently, OSHA decided
not to include a general requirement for all fall arrest equipment used
under the final rule to be capable of passing an electric-arc test.
However, OSHA agrees that electric arcs can damage personal fall
arrest equipment as readily as work-positioning equipment. The testing
to which the commenters referred, and which is the basis of the test
data found in the record, demonstrates that harnesses subjected to an
electric arc can fail a drop test (Ex. 0432). The Agency concludes from
these test data that personal fall arrest equipment worn by an employee
who is exposed to an electric arc could fail if it is not designed to
withstand the heat energy involved. OSHA also agrees with the
commenters that employees working on or near energized circuits are
exposed to electric arcs when the circuit parts are exposed (Ex. 0180).
Accordingly, OSHA adopted a requirement in the final rule that fall
arrest equipment used by employees exposed to hazards from flames or
electric arcs be capable of passing a drop test after exposure to an
electric arc \106\ with a heat energy of 405 cal/cm\2\.
This requirement matches the electric arc performance required of fall
arrest equipment by ASTM F887-04 (Ex. 0055). The provision appears in
final paragraph (b)(1)(ii).
---------------------------------------------------------------------------
\106\ The electric arc test required by this paragraph is a test
exposing the equipment to an electric arc with a specified incident
heat energy. ASTM F887-12\e1\ includes an electric-arc test method
that involves positioning the fall arrest equipment in front of two
vertically mounted electrodes. The electric arc forms between the
electrodes.
---------------------------------------------------------------------------
Paragraph (g)(1) of Sec. 1926.960 in the final rule requires
employers to identify employees exposed to the hazards of flames or
electric arcs. When these employees are using personal fall arrest
equipment, that equipment also would be exposed to flame or electric-
arc hazards, and the final rule requires this fall arrest equipment to
be capable of passing a drop test equivalent to the test specified in
paragraph (b)(2)(xii) (discussed later in this section of the preamble)
after exposure to an electric arc with a heat energy of 405
cal/cm\2\. Harnesses and shock-absorbing lanyards meeting ASTM F887-
12\e1\ \107\ will be deemed to comply with this provision.
---------------------------------------------------------------------------
\107\ The final rule is based on the edition of the consensus
standard that is in the record, ASTM F887-04, Standard
Specifications for Personal Climbing Equipment (Ex. 0055). OSHA
reviewed the most recent edition of this standard, ASTM F887-12\e1\,
and found that equipment meeting that standard will also comply with
final Sec. 1926.954(b)(1)(ii).
---------------------------------------------------------------------------
OSHA received a substantial number of comments addressing fall
protection requirements for employees working in aerial lifts. Existing
fall protection requirements to protect employees in aerial lifts
performing work, including line-clearance tree-trimming work, covered
by Subpart V or Sec. 1910.269 are found in several standards. In
construction, the construction aerial lift standard (Sec. 1926.453)
and subpart M apply. For maintenance and operation work, the general
industry aerial lift standard (Sec. 1910.67) and existing Sec.
1910.269(g)(2) (incorporating subpart M of the construction standards)
apply. Currently, line-clearance tree-trimming work is typically
governed by the fall protection requirements in Sec. 1910.269 and,
depending on the type of work performed, falls under either the general
industry or construction aerial lift standard.
Paragraph (b)(2)(v) of Sec. 1926.453 in the construction standard
for aerial lifts requires an employee working from an aerial lift to
wear a body belt with a lanyard attached to the boom or basket.
However, the introductory text to Sec. 1926.502(d) in subpart M
provides that ``body belts are not acceptable as part of a personal
fall arrest system.'' The hazards of using a body belt as part of a
fall arrest system are described in the preamble to the Subpart M final
rule (59 FR 40672, 40702-40703, Aug. 9, 1994) and later in this section
of the preamble. In short, since the fall-arrest forces are more
concentrated for a body belt compared to a body harness, the risk of
injury in a fall is much greater with a body belt. In addition, an
employee can fall out of a body belt in a fall. Lastly, an employee
faces an unacceptable risk of further injury while suspended in a body
belt awaiting rescue.
Given the potential discrepancy between the aerial lift standard's
requirement for body belts and the subpart M limitation on the use of
body belts in fall arrest systems, a note following Sec.
1926.453(b)(2)(v) explains that Sec. 1926.502(d) provides that body
belts are not acceptable as part of a personal fall arrest system. The
use of a body belt in a tethering system or in a restraint system is
acceptable and is regulated under Sec. 1926.502(e).
Like the aerial lift standard in construction, the general industry
aerial lift standard at Sec. 1910.67(c)(2)(v) requires an employee
working from an aerial lift to wear a body belt with a lanyard attached
to the boom or basket. Even though existing Sec. 1910.269(g)(2)(i)
requires fall arrest equipment to meet subpart M of part 1926, which
prohibits the use of body belts in personal fall arrest systems, the
Agency previously decided that employers could use body belts and
lanyards configured as fall
[[Page 20384]]
arrest systems to protect employees doing work covered by Sec.
1910.269 in aerial lifts.
OSHA explained in the preamble to the proposal that this rulemaking
would prohibit the use of body belts in personal fall arrest systems
for all work covered by Sec. 1910.269 and subpart V, including work
done from aerial lifts (70 FR 34850). The tree trimming industry
criticized OSHA's proposed application of the Subpart M prohibition on
body belts in personal fall arrest systems on the basis that it left
line-clearance tree trimming employers with two (in the industry's
view, undesirable) options--providing either (1) a personal fall arrest
system with a body harness, or (2) a positioning system that, under
proposed Sec. 1926.954(b)(3)(iv) (or proposed Sec.
1910.269(g)(2)(iii)(D)), is rigged to prevent free falls of more than
0.6 meters (2 feet). (See, for example, Exs. 0174, 0200, 0502, 0503;
Tr. 611-619, 756-760.)
The tree trimming industry is mistaken about the compliance options
available to its employers. The 0.6-meter free-fall limit applies only
to work-positioning equipment, which may not be used in aerial lifts.
As noted previously, under Sec. 1926.500(b) of subpart M,
``positioning device system'' is defined as ``a body belt or body
harness system rigged to allow an employee to be supported on an
elevated vertical surface, such as a wall, and work with both hands
free while leaning.'' Positioning device systems are not permitted to
be used from a horizontal surface, such as the platform or bucket of an
aerial lift.\108\
---------------------------------------------------------------------------
\108\ See, for example, the following OSHA letters of
interpretation:
May 11, 2001, to Mr. Jessie L. Simmons (http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=24360);
August 14, 2000, to Mr. Charles E. Hill (http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=24110); and
April 20, 1998, to Mr. Jonathan Hemenway Glazier (http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=22569).
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Although employees in aerial lifts cannot use work-positioning
equipment, they can use restraint systems. As noted previously, a
restraint system is a method of fall protection that prevents the
worker from falling, for example, by preventing the employee from
reaching an unprotected edge. Body belts are permissible in restraint
systems. If an employer has an employee use a fall restraint system, it
must ensure that the lanyard and anchor are arranged so that the
employee is not exposed to falling any distance.\109\ In addition, for
a restraint system to work, the anchorage must be strong enough to
prevent the worker from moving past the point where the system is fully
extended, including an appropriate safety factor. In a November 2,
1995, letter of interpretation to Mr. Dennis Gilmore, OSHA suggested
that, at a minimum, a fall restraint system have the capacity to
withstand at least 13.3 kilonewtons (3,000 pounds) or twice the maximum
expected force that is needed to restrain the employee from exposure to
the fall hazard.\110\ The Agency recommended that, in determining this
force, employers should consider site-specific factors such as the
force generated by an employee (including his or her tools, equipment
and materials) walking, slipping, tripping, leaning, or sliding along
the work surface.\111\ With respect to work in aerial lifts, to the
extent that the bucket or platform can become separated from the boom
as noted by several commenters (see, for example, Tr. 614-615, 700),
the restraint system would need to be anchored to the boom.
---------------------------------------------------------------------------
\109\ See, for example, the August 14, 2000, letter of
interpretation to Mr. Charles E. Hill (http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=24110).
\110\ This letter of interpretation is available at (http://osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=22006.
\111\ See also the following letters of interpretation:
November 8, 2002, to Mr. Jeff Baum (http://osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=24576); and
November 2, 1995, to Mr. Mike Amen (http://osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=21999).
---------------------------------------------------------------------------
The proposed rule gave line-clearance tree trimming employers two
options for employees in aerial lifts: (1) Use a personal fall arrest
system with a harness; or (2) use a fall restraint system with a body
belt or a harness. With respect to the first option, the tree trimming
industry argued that personal fall arrest systems with body harnesses
pose two hazards unique to line-clearance tree trimmers: (1) An
electrocution hazard in the event of a fall into a power line and (2) a
hazard associated with a harness' being pulled into a chipper. (See,
for example, Exs. 0174, 0200, 0502, 0503; Tr. 616-617, 757-758.)
Testifying on behalf of ULCC, Mr. Andrew Salvadore explained these
arguments as follows:
It is to be noted that this full body harness as one of the
options is potentially problematic though for line clearance tree
trimmers. [D]ue to the unique way that line clearance tree trimmers
work, this is for two reasons.
Reason 1: Linemen work next to energized conductors at arm's
height. So if they fall from the aerial lift, they fall below the
wire suspended in the air. But because . . . line clearance tree
trimmers uniquely work from aerial lifts routinely positioned . . .
or traveling above the wires if they were to fall from the bucket,
they would likely fall onto the wire below when using the six-foot
lanyard and full body harness, facing certain death by
electrocution.
Reason 2: Some line clearance tree trimming companies have their
tree trimmers help feed brush into the truck's wood chippers. This
is a concern among many line clearance tree trimming safety
professionals in that the harness's appendage straps . . . can get
caught on the brush being fed into the chipper and drag the operator
into the chipper. Additionally the donning and doffing of a full
body harness may predispose the aerial lif[t] operator to take [an]
unacceptable risk of aiding a coworker chipping brush on the ground
or conversely removing the harness and not putting it back on when
returning [aloft] in the lift. [Tr. 616-617]
In their posthearing comments, ULCC and TCIA expanded on this
testimony. These organizations acknowledged that power line workers
also work above power lines, but maintained that there are still
significant differences that make it more dangerous to use personal
fall arrest equipment with harnesses for line-clearance tree trimming
work (Exs. 0502, 0503). First, ULCC and TCIA argued that, unlike line-
clearance tree trimmers, line workers take measures to protect
themselves from contact with power lines below the aerial lift bucket.
For example, TCIA commented:
Through questioning of IBEW Panelists Jim Tomaseski and Don
Hartley (Hearing Transcript, pages 1016-1019), we discovered that it
is the lineman's typical practice to insulate wires underneath the
person in an elevated work position in an aerial lift when there is
the possibility of the worker coming within (including falling
within) the minimum approach distance. Obviously, it effectively
frees the lineman from concern of their fall protection allowing
them to drop into the conductor(s). [I]nsulating the line is
infeasible or impractical for our crews since they do not possess
the tools or expertise to implement it. [Ex. 0503]
Second, ULCC asserted that line workers perform significantly less work
above power lines than line-clearance tree trimmers, explaining:
Linemen usually work at the height of the electric line; their
work from above the line is atypical--we estimate that less than 20%
of linemen work is from above the line. Thus, the amount of linemen
work [conducted] from above an electric line is di minimis [sic].
[Ex. 0502; emphasis included in original]
First, with respect to fall arrest equipment, OSHA does not
consider body harnesses to pose greater hazards to line-clearance tree
trimmers than
[[Page 20385]]
body belts. The hazard to a worker from being pulled into a chipper is
easily dismissed. OSHA acknowledges that there are serious hazards
associated with operating chippers, including the hazard that workers
could be caught by the chipper feed mechanism. NIOSH published an
article warning of hazards associated with the operation of chippers
(see NIOSH Publication No. 99-145, ``Hazard ID 8--Injury Associated
with Working Near or Operating Wood Chippers;'' Ex. 0481), and that
publication provides recommendations to protect workers against being
caught in the feed mechanism.\112\ These recommendations include: (1)
Having workers wear close-fitting clothing and gloves, (2) having
workers wear trousers without cuffs, and (3) ensuring that employees
tuck in their clothing. Consistent with these recommendations, OSHA
expects that any hazards associated with using a chipper while wearing
a harness can be avoided by requiring employees to remove their
harnesses before working with the chipper. The tree trimming industry
commented that employees might not want to take off their harnesses
before feeding brush into chippers. (See, for example, Ex. 0502; Tr.
616-617.) OSHA does not find that argument persuasive. Employers can
avoid this concern altogether by having these workers perform other
ground-based work, such as moving the cut tree branches near the
chipper, while ground workers, who are not wearing harnesses, feed the
branches into the chippers.
---------------------------------------------------------------------------
\112\ This document is available at http://www.cdc.gov/niosh/docs/99-145.
---------------------------------------------------------------------------
Second, OSHA does not consider the risk of falling into a power
line to be as serious as the tree care industry portrays. If an
employee falls from an aerial lift while using a personal fall arrest
system with a harness, contact with a power line, though possible, is
not certain. Sometimes the employee will not be working over the line.
In other situations, the line will be on one side of the aerial lift
bucket, but the employee will fall out on the other side where no
conductors are present. In addition, the line may be far enough away
that the employee does not reach it during the fall. In any event, the
hazards associated with an employee falling into a power line can be
reduced--or even removed altogether--by using a shorter lanyard as
suggested by some rulemaking participants. (See, for example, Ex. 0505;
Tr. 694-695.) In this regard, IBEW noted: ``If . . . the normal lanyard
length [for a fall arrest system] of 5 to 6 feet is too long, the
lanyard can be shortened to 3 or 4 feet, thereby eliminating the
anticipated problems'' (Ex. 0505). Noting that the attachment point on
a harness will be farther from the anchorage on the boom than is the
attachment point on a body belt, ULCC claimed that a 0.9-meter (3-foot)
lanyard was unworkable with a body harness (Ex. 0502). OSHA is not
suggesting that a 0.9-meter lanyard with a body harness is feasible,
only that a lanyard shorter than 1.8 meters (6 feet) could be used to
reduce the risk of contact with a power line. A retractable lanyard
could be used to keep the length of the lanyard as short as possible,
thereby reducing the risk even further.
Finally, the tree trimming associations' attempt to portray the
hazards of falling into power lines as unique to their industry is
flawed. The evidence is clear from the comments of employees who
perform line work that power line workers also work above power lines
and can fall into them. (See, for example, Ex. 0505; Tr. 971.) In
addition, ULCC's attempt to distinguish line-clearance tree trimming
work from power line work on the grounds that power line workers
insulate the conductors above which they are working is unpersuasive.
Like line-clearance tree trimmers, power line workers often work above
energized power lines that have not been insulated. The final rule does
not require insulation on conductors for a power line worker
maintaining the minimum approach distance. In addition, insulating the
lines is not always possible. According to Sec. 1926.97(c)(2)(i) and
Table E-4 of the final rule, the highest maximum use voltage for rubber
insulating equipment, such as rubber insulating line hose or blankets,
is 36 kilovolts. The maximum use voltage for plastic guard equipment is
72.5 kilovolts (Ex. 0073). Insulation is not available above those
voltages.
TCIA argued that insulating power lines is not feasible or
practical for line-clearance tree trimming crews (Ex. 0503). OSHA is
not persuaded by this argument. To the extent that it is the practice
of line workers to insulate conductors beneath them, OSHA concludes
that this practice also represents a feasible means of protecting line-
clearance tree trimmers from the hazard of falling into the line. The
comment that line-clearance tree trimmers are not currently being
trained in this practice is not relevant to whether it is feasible. If
necessary, a line-clearance tree trimming employer could have the
electric utility install the insulation or train line-clearance tree
trimmers so that they are qualified to install insulation. In any
event, the final rule does not require insulation for line-clearance
tree trimmers; the final rule at Sec. 1910.269(r)(1)(iii) simply
requires them to maintain the minimum approach distance from power
lines. The use of insulation would simply be one way for line-clearance
tree trimming employers to address their concern about employees
falling into power lines while using personal fall arrest systems.
The tree trimming industry did not submit any comments directly
addressing the use of restraint systems, which is the second compliance
option available to line-clearance tree trimming employers. Instead, as
a result of the industry's misunderstanding regarding the applicability
of the 0.6-meter (2-foot) free-fall distance for work-positioning
systems (described earlier), it simply argued that it would be
impossible or unsafe for employees working from an aerial lift to use a
0.6-meter lanyard with a body belt for their work. (See, for example,
Exs. 0174, 0200, 0419, 0502, 0503; Tr. 613-615, 756.)
Mr. Andrew Salvadore, representing ULCC, testified as follows:
[W]e can't do line clearance tree trimming with a lanyard of two
foot [sic] or less. There are three reasons for this.
Reason No. 1: Line clearance tree trimmers need to be able to
reach from the four corners of an aerial lift bucket to do their
work because [of the need] to maintain a minimum approach distance
from energized wires different from linemen who can work right next
to the wires. We can't get to the four corners of the bucket with a
two-foot or shorter lanyard, typically anchored . . . outside of the
bucket on the boom. This prevents us from reaching outside of the
bucket with our tools or extending from the bucket. . . .
Reason 2: The two-foot limitation is also unworkable because we
usually work from [an] aerial lift positioned above energized
conductors, reaching down to the tree branches below adjacent to
conductors using insulated pole tools. This is different from
linemen who typically position their lift buckets right next to the
wire at arm's length. We lack the range of movement within the
bucket necessary to reach over the bucket and down to the worksite
because we would be restrained to the side of the bucket closest to
the anchor. Relocation of an anchor is not [an] easy fix because the
anchor is required to withstand a 5,000 pounds of force and
typically can't be installed on the bucket . . . because [of] the
lack of [a] strong enough anchoring point and because if the bucket
breaks off in a catastrophic incident the worker goes down with the
anchor attached to the bucket [rather than] being suspended by the
lanyard attached to the boom.
The Third Reason: Our people may be potentially yanked out of
the bucket into precisely the fall that is sought to be avoided by
the proposal because line clearance tree trimmers routinely rotate
and articulate their lift buckets in ways that would exceed the
distance of a short lanyard. . . . [This
[[Page 20386]]
exposes] the worker to being yanked out of the bucket by the short
lanyard when the range of articulation of the bucket exceeds the
short length of the lanyard. [Tr. 613-615]
To address these problems, the tree care industry recommended that OSHA
permit the use of a 0.9-meter (3-foot) shock-absorbing lanyard with a
body belt. (See, for example, Exs. 0174, 0200, 0502, 0503; Tr. 615--
616, 759--760.) The industry proposed a 408-kilogram (900-pound)
limitation on fall arrest forces, presumably to remove hazards
associated with concentrated fall arrest forces in falls into body
belts (id.).
As noted earlier, the tree care industry misinterpreted its
compliance options under the proposed rule. For work from an aerial
lift, there are only two options: (1) Fall arrest equipment and (2) a
fall restraint system. Restraint systems do not permit any free fall.
An acceptable restraint system for an aerial lift would prevent an
employee from falling out of the lift and from being catapulted from
the lift (for example, if the vehicle supporting the aerial lift was
struck by a vehicle or if a large tree section struck the boom). Body
belts are permitted as part of a restraint system; however, a system
rigged to allow an employee to free fall even 0.6 meters (2 feet) would
not be acceptable as a restraint system. The system proposed by the
tree care industry, namely a body belt connected to a 0.9-meter (3-
foot) lanyard attached to an anchorage on the boom of an aerial lift,
would not prevent the employee from falling out of or being catapulted
from an aerial lift. Therefore, it would not be acceptable as a
restraint system.
Moreover, with a body belt instead of a harness, the system
proposed by the tree care industry would not be an acceptable fall
arrest system. Even if it provides sufficient protection to employees
against concentrated fall arrest forces, it does not address the other
two significant hazards associated with falling into body belts, that
is, falling out of the body belt and sustaining further injury during
suspension.\113\
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\113\ Paragraph (d)(16) of Sec. 1926.502 requires a personal
fall arrest system to be rigged so that the employee cannot free
fall more than 6 feet (1.8 meters) nor contact any lower level. The
Agency notes that the lanyard may need to be shorter than the
maximum free-fall distance. This is the case for aerial lift work.
The anchorage point on the boom of an aerial lift may be below the
attachment point on the body belt or harness. As a result, the
employee could free fall a distance equal to twice the length of the
lanyard if he or she is ejected or catapulted from the aerial lift,
as can happen when a vehicle strikes the aerial lift truck or a
falling object, such as a tree branch, strikes the boom. This is not
an unlikely event as several accidents in the record demonstrate
(Ex. 0003; these three accidents can be viewed at http://www.osha.gov/pls/imis/accidentsearch.accident_detail?id=14507743&id=953869&id=14333157). Thus, the tree industry's
recommended lanyard length could result in a free fall of 1.8 meters
(6 feet).
---------------------------------------------------------------------------
The tree care industry asserted that OSHA has not demonstrated that
using body belts in personal fall arrest systems in aerial lifts poses
hazards to line-clearance tree trimmers. (See, for example, Exs. 0174,
0200, 0502, 0503; Tr. 613, 758-759.) TCIA made this point as follows:
The only fall protection issue arising in aerial lifts is
failure to use any form of fall protection--an unsafe and non-
compliant behavior that the industry must strive to eliminate.
Similarly, if operators in the past have worn body belts
incorrectly, causing the equipment to not deliver the level of
protection it should have, then there is a behavioral issue to
address in training.
It is our industry's experience that workers are not being
injured by virtue of using body belts . . . and that non-compliance
with PPE use requirements is directly proportional to how hard or
uncomfortable the PPE is to use. [Ex. 0200; emphasis included in
original]
ULCC had similar comments:
Preliminarily, there is NO showing in the subject notice of rule
making that . . . allowing a body belt and lanyard for fall
protection from aerial devices . . . creates a risk which merits
modification of existing practice. It is our industry's experience
that line clearance tree trimmers are not being injured by virtue of
using body belts (OSHA cites no evidence, nor contrary evidence of
any such bucket fall hazard or hazard from body belt lanyards over
two feet long in line clearance tree trimming), and that lack of
compliance with PPE use requirements is directly proportional to how
hard or uncomfortable the PPE is to use. Between 1984 and 2002,
there were 34 OSHA-recorded fatalities in Tree Trimming (SIC 0783)
involving aerial device operators and falls. The details of these
accidents illustrate where the greatest problems lie:
23 of 34 fatalities were caused by catastrophic
mechanical failures of some part of the aerial device that slammed
the victim to the ground from considerable height. Fall protection,
or lack of it, was not a factor in these fatalities.
5 of 34 fatalities were caused by a tree or limb
striking the aerial lift boom, again causing failure of the aerial
device. Again, fall protection was not a factor.
6 of 34 fatalities were caused by unsecured falls from
the aerial device, and probably would have been prevented by the use
of any means of fall protection.
At a recent meeting of the Tree Care Industry Association Safety
Committee (a tree care industry trade association), with the safety
directors of 20 of the largest tree care companies representing well
over 60,000 tree care employees present, a survey was taken as to
whether these companies had any experience with aerial lift
operators being injured from secured falls out of buckets. None did.
For them, the more profound problem was the operator who disobeyed
company policy and failed to wear any fall protection. [Ex. 0174;
emphasis included in original]
In its posthearing comments, ULCC further argued that the one accident
OSHA described, in which an employee slipped out of a body belt,
occurred to a line worker, not a line-clearance tree trimmer, and that
this single accident ``is statistically insignificant, insufficiently
documented on the record, and in no way probative of any problem of
line clearance tree trimmers falling from aerial lifts'' (Ex. 0502).
ULCC further suggested that OSHA's proposal ignored the suspension-
trauma risk associated with full body harnesses (Exs. 0481, 0502).
(OSHA describes the hazards related to prolonged suspension in fall
protection equipment later in this section of the preamble.)
OSHA rejects these assertions. OSHA closely examined issues related
to the use of body belts in arresting falls in its Subpart M rulemaking
(59 FR 40702-40703). In that rulemaking, the Agency concluded that
``evidence in the record clearly demonstrates that employees who fall
while wearing a body belt are not afforded the level of protection they
would be if the fall occurred while the employee was wearing a full
body harness'' (59 FR 40703). In addition, the Agency pointed to
``evidence of injuries resulting from the use of body belts'' in fall
arrest systems (id.). Also, as mentioned by ULCC, there is evidence in
this rulemaking of an incident in which an employee, working from an
aerial lift while wearing a body belt in a fall arrest system, slipped
from the belt in a fall (Ex. 0003 \114\). Contrary to the tree care
industry's suggestion, OSHA need not show that injuries are presently
occurring to line-clearance tree trimmers because of falls into body
belts; it is sufficient that the Agency found that tree trimming
employees are exposed to a significant risk of injury under the
existing standard and that the final rule will substantially reduce
that risk. (See Section II.D, Significant Risk and Reduction in Risk,
earlier in this preamble, for OSHA's response to the argument that the
Agency is required to demonstrate a significant risk for each of the
hazards addressed by this rulemaking.) ULCC's own analysis confirms
that line-clearance tree trimmers are exposed to fall hazards (Ex.
0174). Nearly 18 percent of falls from aerial lifts were of the type
that, if the employee had been wearing a body belt in a personal fall
arrest system, he or she would have been exposed to the serious
hazards, described earlier, that
[[Page 20387]]
are associated with using body belts in fall arrest systems (id.).
---------------------------------------------------------------------------
\114\ The description of this accident is available at: http://www.osha.gov/pls/imis/accidentsearch.accident_detail?id=170155857.
---------------------------------------------------------------------------
The Agency acknowledges the suspension risk from body harnesses
identified by ULCC. When an employee is suspended in a body belt or
harness, a number of adverse medical effects can occur, including upper
or lower extremity numbness; abdominal, shoulder, or groin pain;
respiratory distress; nausea; dizziness; and arrhythmias (Ex. 0088). At
least one of the adverse effects, orthostatic incompetence, can lead to
death (Ex. 0481). It is because of these hazards that Sec.
1926.502(d)(20) in Subpart M requires the employer to provide for
prompt rescue of employees in the event of a fall or to assure that
employees are able to rescue themselves. In any event, the hazards
associated with prolonged suspension in a body belt are substantially
more severe than the hazards associated with suspension in a harness.
In 1985, the U.S. Technical Advisory Group on Personal Equipment for
Protection Against Falling stated, in comments on another OSHA
rulemaking: ``The length of time which a fallen person can tolerate
suspension in a body belt is measured in a very few minutes under the
most favorable conditions'' (Ex. 0084). In addition, a 1984 U.S. Air
Force literature review recounted one study that found that ``two
subjects evaluated in . . . waist belt[s] with shoulder straps
tolerated suspension for 1 min 21 sec and 3 min'' (Ex. 0088).\115\ That
same study showed that subjects suspended in full body harnesses could
tolerate suspension for approximately 20 to 30 minutes (id.).
---------------------------------------------------------------------------
\115\ Hearon, B.F., Brinkley, J.W., ``Fall Arrest and Post-Fall
Suspension: Literature Review and Directions for Further Research,''
AFAMRL-TR-84-021, April 1984.
---------------------------------------------------------------------------
The tree care industry commented that, to the extent injuries are
occurring, they are caused by the failure of employees to use any fall
protection, rather than by the use of body belts. (See, for example,
Exs. 0174, 0200.) This argument supports, rather than undermines, a
requirement for harnesses in personal fall arrest systems. To the
extent better enforcement of fall protection requirements by employers
is a critical component of protecting employees in aerial lifts,
harnesses are preferable to body belts. It is not always possible to
detect from the ground whether an employee is wearing a body belt, but
it is relatively easy to determine if an employee is wearing a body
harness (Tr. 972-973). If employees initially resist the use of body
harnesses, as suggested by some commenters (see, for example, Exs.
0174, 0200, 0219), employers must be proactive in communicating the
need for, and ensuring the use of, the required equipment.
The Agency concludes that the use of a 0.9-meter shock-absorbing
lanyard with a body belt, as proposed by the tree trimming industry, is
not an adequate substitute for the use of a harness in a fall arrest
system. OSHA has not been persuaded to abandon its finding in the
Subpart M rulemaking that body belts present unacceptable risks in fall
arrest situations and should be prohibited as components of fall arrest
equipment. OSHA is adopting in the final rule the requirement proposed
in paragraph (b)(1) that personal fall arrest equipment meet Subpart M
of Part 1926. This provision appears in final Sec. 1926.954(b)(1)(i).
ULCC noted what it perceived as an implied, but unstated, revision
in the proposal to the provisions contained in the general industry
aerial lift standard (Sec. 1910.67(c)(2)(v)) requiring employees
working in aerial lifts to use body belts and lanyards. (See, for
example, Ex. 0174.)
In the preamble to the proposal, OSHA explained that it was relying
on the provisions in the aerial lift standards to establish the
employer's duty to provide fall protection for employees, but that
Subpart M would govern the criteria fall arrest equipment must meet (70
FR 34850). In other words, for work covered by this rule, body belts
would not be permitted in personal fall arrest systems. The ULCC
commented: ``OSHA's suggestion that [the aerial lift standard]
describes only the `duty' to use fall protection rather than the kind
of fall protection, respectfully, is a makeweight'' (Ex. 0502).
In light of ULCC's comments, the Agency is concerned that some
employers reading the final rule may mistakenly assume that the body
belts required by Sec. Sec. 1910.67(c)(2)(v) and 1926.453(b)(2)(v)
remain acceptable for use in personal fall arrest systems. In addition,
the Agency wants to make it clear in the final rule that work-
positioning equipment is unacceptable from the horizontal working
surface of an aerial lift. Employees working from aerial lifts covered
by the final rule must be protected using either a fall restraint
system or a personal fall arrest system. Therefore, OSHA is adding a
provision in final Sec. Sec. 1910.269(g)(2)(iv)(C)(1) and
1926.954(b)(3)(iii)(A) providing that employees working from aerial
lifts be protected with a fall restraint system or a personal fall
arrest system and that the provisions of the aerial lift standards
requiring the use of body belts and lanyards do not apply. This
provision clearly states the requirement contained in the proposal. As
a consequence of this change, the final rule does not include the text
in Note 1 to proposed Sec. 1910.269(g)(2)(iii)(C) and Note 1 to
proposed Sec. 1926.954(b)(3)(iii) referring to fall protection for
aerial lifts or referencing the general industry and construction
standards on aerial lifts. (The corresponding notes in the final rule
are Note 1 to Sec. 1910.269(g)(2)(iv)(C)(2) and (g)(2)(iv)(C)(3) and
Note 1 to Sec. 1926.954(b)(3)(iii)(B) and (b)(3)(iii)(C).)
OSHA is adopting revised requirements for work-positioning
equipment in Sec. 1926.954(b)(2).\116\ Section 1926.959 of existing
Subpart V contains requirements for body belts, safety straps,\117\ and
lanyards.\118\ This equipment was traditionally used as both work-
positioning equipment and fall arrest equipment in the maintenance and
construction of electric power transmission and distribution
installations. However, fall arrest equipment and work-positioning
equipment present significant differences in the way they are used and
in the forces they place on an employee's body. With fall arrest
equipment, an employee has freedom of movement within an area
restricted by the length of the lanyard or other device connecting the
employee to the anchorage. In contrast, and as explained earlier, work-
positioning equipment is used on a vertical surface to support an
employee in position while he or she works. The employee ``leans'' into
this equipment so that he or she can work with both hands free. If a
fall occurs while an employee is wearing fall arrest equipment, the
employee will free fall up to 1.8 meters (6 feet) before the slack is
removed and the equipment begins to arrest the fall. In this case, the
fall arrest forces can be high, and they need to be spread over a
relatively large area of the
[[Page 20388]]
body to avoid injury to the employee. Additionally, the velocity at
which an employee falls can reach up to 6.1 meters per second (20 feet
per second). Work-positioning equipment is normally used to prevent a
fall from occurring in the first place. If the employee slips and if
the work-positioning equipment is anchored, the employee will only fall
a short distance (no more than 0.6 meters (2 feet) under paragraph
(b)(3)(iv) of final Sec. 1926.954). This distance limits the forces on
the employee and the maximum velocity of a fall. Additionally, because
of the way the equipment is used, the employee should not be free
falling. Instead, the work-positioning equipment will be exerting some
force on the employee to stop the fall, thereby further limiting the
maximum force and velocity. As long as the employee is working on a
vertical surface, the chance of an employee using work-positioning
equipment falling out of, or being suspended at the waist in, a body
belt is extremely low.
---------------------------------------------------------------------------
\116\ In Sec. 1910.269(g)(2)(ii), OSHA proposed to require body
belts and positioning straps for work positioning to meet Sec.
1926.954(b)(2). The final rule duplicates the requirements of Sec.
1926.954(b)(2) in Sec. 1910.269(g)(2)(iii) rather than referencing
them.
\117\ ``Safety straps'' is an older, deprecated term for
``positioning straps.''
\118\ Existing Sec. 1926.500(a)(3)(iii) states that additional
performance requirements for personal climbing equipment, lineman's
body belts, safety straps, and lanyards are provided in subpart V.
OSHA is revising the language in this provision to make it
consistent with the terms used in final Subpart V. Furthermore,
because the Agency is adopting, in subpart V, an additional
requirement for fall arrest equipment used by employees exposed to
electric arcs (as described earlier in this section of the
preamble), OSHA is adding fall arrest equipment to the list of
equipment in Sec. 1926.500(a)(3)(iii). As revised, Sec.
1926.500(a)(3)(iii) states that additional performance requirements
for fall arrest and work-positioning equipment are provided in
Subpart V.
---------------------------------------------------------------------------
In the final rule, OSHA is applying requirements to personal fall
arrest systems that differ from the requirements that apply to work-
positioning equipment. As discussed previously, personal fall arrest
systems must meet subpart M of part 1926, as required by paragraph
(b)(1)(i), supplemented by the requirement in final paragraph
(b)(1)(ii) that the equipment withstand exposure to electric arcs.
Work-positioning equipment must meet the requirements contained in
paragraph (b)(2) of the final rule. Employers engaged in electric power
transmission and distribution work may use the same equipment for fall
arrest and for work positioning provided the equipment meets both sets
of requirements. In fact, as noted in the preamble to the proposal,
several manufacturers market combination body harness-body belt
equipment, which can be used as fall arrest systems by employees
working on horizontal surfaces or as work-positioning systems
supporting employees working on vertical surfaces (70 FR 34850).
Paragraph (b)(2) of the final rule is based on existing Sec.
1926.959 and ASTM F887-04, Standard Specifications for Personal
Climbing Equipment, which was the latest edition of the national
consensus standard applicable to work-positioning equipment when OSHA
developed the proposed rule (Ex. 0055). Although OSHA is adopting
requirements derived from the ASTM standard, the final rule is written
in performance-oriented terms. Detailed specifications contained in the
ASTM standard, which do not directly impact the safety of employees,
were not included in the final rule. The Agency believes that this
approach will retain the protection for employees afforded by the ASTM
standard, while giving employers flexibility in meeting the OSHA
standard and accommodating future changes in the ASTM standard without
needing to change the OSHA standard. This is similar to the approach
OSHA took in final Sec. 1926.97, discussed previously.
While the ASTM standard does not cover lanyards, paragraph (b)(2),
as proposed, would have applied many of the requirements based on the
ASTM standard to lanyards. Existing Sec. 1926.959 imposes the same
basic requirements on lanyards.
OSHA requested comment on whether any of the proposed requirements
for work-positioning equipment should not be applicable to lanyards.
Some commenters supported the Agency's proposal. (See, for example,
Exs. 0211, 0230.) For instance, IBEW stated:
[L]anyards used for fall protection for electric power
transmission and distribution work [already] meet the requirements
of ASTM F887-04. Therefore these requirements, as proposed, should
be applicable to lanyards used for work positioning equipment. [Ex.
0230]
However, Buckingham Manufacturing Company, a manufacturer of work-
positioning equipment used by line workers, opposed the application of
some of the proposed requirements for work-positioning equipment to
lanyards:
Buckingham Mfg. recommends including a section on lanyards to
remove requirements outlined in the referenced sections that are not
applicable to lanyards such as: (b)(2)(vii) and including at least
criteria such as strength requirements for the rope or webbing used
to manufacture . . . a lanyard, the minimum number of rope tucks for
rope lanyards, the length of stitching for turnover at ends of web
lanyards, stitching used be of a contrasting color to facilitate
visual inspection, etc. [Ex. 0199]
ASTM F887-04 refers to the straps used with work-positioning
equipment as ``positioning straps,'' not lanyards.\119\ That consensus
standard uses the term ``lanyard'' only with respect to personal fall
arrest equipment. In addition, subpart M uses the term ``lanyard'' only
in the requirements applicable to personal fall arrest systems in Sec.
1926.502(d). However, existing Sec. 1926.959 applies to ``body belts,
safety straps, and lanyards'' used for either work positioning or fall
arrest. Because the term ``lanyard'' is most typically used with
reference to fall arrest equipment, OSHA is concerned that using that
term in requirements for work-positioning equipment could lead
employers or employees to believe that work-positioning equipment is
acceptable for use in fall arrest situations, for example, when an
employee is working from a horizontal surface. For these reasons, OSHA
decided to use the term ``positioning strap'' instead of lanyard in
final paragraph (b)(2) to describe the strap used to connect a body
belt to an anchorage in work-positioning equipment. Thus, any strap
used with work-positioning equipment is a ``positioning strap'' for the
purposes of paragraph (b)(2). This language also should address
Buckingham Manufacturing's concerns that some of the proposed
requirements were inapplicable to lanyards. The Agency believes that
Buckingham Manufacturing's comment was referring to lanyards used with
personal fall arrest systems, which OSHA recognizes may not meet all of
the requirements for positioning straps in final Sec. 1926.954(b)(2).
Paragraph (b)(2)(vii) contains specifications for positioning straps
that are essential to electric power generation, transmission, and
distribution work, including requirements for electrical performance,
strength, and flame resistance (Ex. 0055). Lanyards, which are used
with personal fall arrest systems, have to meet appropriate strength
and, if necessary, arc-resistance requirements under subpart M and
final Sec. 1926.954(b)(1)(ii).
---------------------------------------------------------------------------
\119\ ASTM F887-12\e1\ uses the term ``adjustable positioning
lanyards'' for equipment used as part of certain positioning
devices. OSHA treats these lanyards as ``positioning straps'' under
the final rule.
---------------------------------------------------------------------------
Paragraph (b)(2)(i), which is being adopted without substantive
change from the proposal, requires hardware for body belts and
positioning straps to be made from drop-forged steel, pressed steel,
formed steel, or equivalent material. This hardware also must have a
corrosion-resistant finish. Surfaces must be smooth and free of sharp
edges. These requirements ensure that the hardware is durable, strong
enough to withstand the forces likely to be imposed, and free of sharp
edges that could damage other parts of the work-positioning equipment.
These requirements are equivalent to existing Sec. 1926.959(a)(1),
except that the existing standard does not permit hardware to be made
of any material other than drop-forged or pressed steel. Although ASTM
F887-04 requires hardware to be made
[[Page 20389]]
of drop-forged steel,\120\ OSHA explained in the preamble to the
proposal that, while the drop-forged steel process produces hardware
that more uniformly meets the required strength criteria and will
retain its strength over a longer period than pressed or formed steel,
it is possible for other processes to produce hardware that is
equivalent in terms of strength and durability (70 FR 34851).
Paragraphs (d)(1) and (e)(3) of Sec. 1926.502 already permit
``connectors'' (that is, ``hardware'' as that term is used in this
final rule) to be made of materials other than drop-forged or pressed
steel.
---------------------------------------------------------------------------
\120\ The current edition of this standard, ASTM F887-12\e1\,
also requires hardware to be made from drop-forged steel in Section
15.4.1.1.
---------------------------------------------------------------------------
OSHA invited comments on whether alternative materials would
provide adequate safety to employees. Most commenters responding to
this issue supported the proposed language accepting the use of
equivalent materials. (See, for example, Exs. 0126, 0162, 0173, 0175,
0186, 0230.) For instance, Ms. Salud Layton of the Virginia, Maryland &
Delaware Association of Electric Cooperatives commented:
We support the flexibility OSHA [is] offering in this area.
Allowing hardware to be made of material other than drop-forged or
pressed steel allows for potential alternatives to be evaluated for
use. Other material, however, must meet the strength and durability
criteria of drop-forged or pressed steel materials. [Ex. 0175]
Other commenters supported the proposal because it would permit the use
of alternative materials that might be developed in the future (Exs.
0162, 0186, 0230). Mr. Daniel Shipp with ISEA commented that the ``use
of non-ferrous materials, including high-tensile aluminum with [a]
protective anodize coating, is common'' and noted that there are
``criteria [available] for evaluating the equivalence between forged
alloy steel and other materials'' (Ex. 0211).
Although OSHA received no outright opposition to the proposal, ASTM
Committee F18 on Electrical Protective Equipment for Workers, the
committee responsible for developing ASTM F887, submitted the following
statement from Mr. Hans Nichols, P.E., Metallurgical Consulting:
My opinion is that forgings are superior to stampings. The
principal advantage of forgings is control of grain direction to
match the part geometry. The grain direction of a stamping will be
oriented transverse to the part in some areas. Since the mechanical
properties, i.e.--yield strength and impact strength, are lower in
the transverse direction, this area of the part would be a weak
point. [Ex. 0148]
OSHA agrees that some materials have advantages over others and
expects that manufacturers typically base their design decisions on
factors such as these. However, the fact that forgings may result in
more uniform strength throughout a material than stampings is not
relevant to the overall strength of hardware. It is the area of least
strength that determines whether hardware has sufficient overall
strength, and the design-test requirements in the final rule (discussed
later in this section of the preamble) ensure that hardware, and the
entire work-positioning system, are sufficiently strong. In other
words, the testing requirements in the rule ensure that the weakest
part of the weakest piece of the system will not fail under conditions
likely to be encountered during use. In addition, the final rule
requires that the hardware be made of material that has strength and
durability equivalent to that of drop-forged, pressed, or formed steel,
materials used successfully for work-positioning equipment for decades.
Therefore, OSHA is including paragraph (b)(2)(i) in the final rule
substantially as proposed.
Paragraph (b)(2)(ii), which is being adopted without substantive
change from the proposal, requires buckles to be capable of
withstanding an 8.9-kilonewton (2,000-pound-force) tension test with a
maximum permanent deformation no greater than 0.4 millimeters (0.0156
inches). This requirement, which also can be found in existing Sec.
1926.959(a)(2), will ensure that buckles do not fail if a fall occurs.
Paragraph (b)(2)(iii), which is being adopted without substantive
change from the proposal, requires that D rings be capable of
withstanding a 22-kilonewton (5,000-pound-force) tensile test without
cracking or breaking. (A D ring is a metal ring in the shape of a
``D.'' See Figure 2, which shows a snaphook and a D ring.) This
provision, which is equivalent to existing Sec. 1926.959(a)(3), will
ensure that D rings do not fail if a fall occurs.
Paragraph (b)(2)(iv), which is being adopted without substantive
change from the proposal, is equivalent to existing Sec.
1926.959(a)(4) and requires snaphooks to be capable of withstanding a
22-kilonewton (5,000-pound-force) tension test without failure. A note
following this provision indicates that distortion of the snaphook
sufficient to release the keeper is considered to be tensile failure.
The language of the note in the final rule was revised from the
proposal to make it clear that such distortion is only one form of
failure. The snaphook breaking completely is a more obvious failure not
mentioned in the note.
Paragraph (b)(2)(v), which is being adopted without change from the
proposal, prohibits leather or leather substitutes from being used
alone as a load-bearing component of a body-belt and positioning-strap
assembly. This is a new requirement for Subpart V and was derived from
ASTM F887-04, Sections 14.2.1 and 15.2.1.\121\ The requirement is
necessary because leather and leather substitutes do not retain their
strength as they age. Because this loss in strength is not always easy
to detect by visual inspection, it can lead to failure under fall
conditions.
---------------------------------------------------------------------------
\121\ These requirements are also contained in the latest
edition, ASTM F887-12\e1\, in Sections 14.2.1 and 15.2.1.1.
---------------------------------------------------------------------------
Paragraph (b)(2)(vi), which is being adopted without substantive
change from the proposal, requires that plied fabric used in
positioning straps and in load-bearing portions of body belts be
constructed so that no raw edges are exposed and the plies do not
separate. This new requirement, which also is based on ASTM F887-04, in
this instance, Sections 14.2.2 and 15.2.2, will prevent plied fabric
from separating, which could cause it to fail under fall
conditions.\122\
---------------------------------------------------------------------------
\122\ These requirements are also contained in the latest
edition, ASTM F887-12\e1\, in Sections 14.2.2 and 15.2.1.2.
---------------------------------------------------------------------------
Although work-positioning equipment used in electric power
transmission and distribution work is not to be used as insulation from
live parts, positioning straps could come into accidental contact with
live parts while an employee is working. Thus, OSHA deems it important
for this equipment to provide a specified level of insulation.
Accordingly, the Agency proposed, in paragraphs (b)(2)(vii)(A) and
(b)(2)(vii)(B), to require positioning straps to be capable of passing
dielectric and leakage current tests.\123\ Similar requirements are
found in existing Sec. 1926.959(b)(1). The voltages listed in the
proposed paragraphs were alternating current. A note following proposed
paragraph (b)(2)(vii)(B) indicated that equivalent direct current tests
also would be acceptable.
---------------------------------------------------------------------------
\123\ The dielectric and leakage-current tests required by these
paragraphs involve attaching electrodes to the fall protection
equipment, applying a test voltage across the electrodes, and
checking for deterioration (in the case of the dielectric test) or
measuring leakage current (in the case of the leakage-current test).
ASTM F887-12\e1\ includes test methods for these two tests.
---------------------------------------------------------------------------
In the preamble to the proposed rule, OSHA explained that ASTM
F887-04 did not require positioning straps to pass a withstand-voltage
test (70 FR
[[Page 20390]]
34851). Instead, the consensus standard stated in a note that the
fabric used in the positioning straps must pass a withstand-voltage
test. The Agency invited comment on whether performing electrical tests
on positioning straps is necessary for employee safety in electric
transmission and distribution work (that is, whether the requirements
proposed in paragraphs (b)(2)(vii)(A) and (b)(2)(vii)(B) were
necessary).\124\ A number of commenters responded to this question.
Some commenters supported OSHA's proposal. (See, for example, Exs.
0148, 0230.) For instance, IBEW explained:
---------------------------------------------------------------------------
\124\ The preamble to the proposal asked specifically about the
withstand test requirement proposed in paragraph (b)(2)(vii)(A);
however, most commenters responded to the question of whether there
is a need to perform electrical tests on positioning straps (the
withstand test and the leakage test proposed in paragraph
(b)(2)(vii)(B)).
Positioning straps should offer a minimum level of insulation in
the event [the] strap comes in contact with energized parts. The
manufacturing specifications from ASTM F887-04 do not ensure the
positioning strap actually offers any level of insulation. As stated
in the proposal, the ASTM requirements only require the fabric used
to make the strap be tested for leakage current. Other products used
[in] the manufacture of the strap could . . . jeopardize the
electrical [insulation] integrity of the fabric. Therefore, the
leakage current of the finished product will not be known without a
---------------------------------------------------------------------------
separate test. [Ex. 0230]
ASTM commented that ``requirements in ASTM F887 04 for leakage
current and withstand testing of the positioning strap material in
Sections 15.3.1 and 15.3.1--Note 2 are adequate for the performance of
the positioning strap'' (Ex. 0148). The organization recommended that
the ASTM language ``be repeated in the Final 1926.954, or incorporated
by reference'' (id.).
Other commenters did not see a need to perform electrical tests on
positioning straps. (See, for example, Exs. 0162, 0173, 0186, 0219.)
For instance, Mr. Anthony Ahern with Ohio Rural Electric Cooperatives
argued: ``Given the environment these devices will be used in, within 5
minutes of being used the first time they will probably have enough
dirt and wood preservative ground into them that they couldn't pass
such a test again'' (Ex. 0186). He also noted that this equipment has
been in service for years and he is not aware of any accidents that
have occurred due to the breakdown of a positioning strap (id.). Mr.
Allen Oracion with Energy United EMC maintained that positioning straps
will be separated from energized parts by at least the minimum approach
distance, making withstand tests unnecessary (Ex. 0219).
OSHA believes that requiring positioning straps to be capable of
passing the electrical tests in proposed Sec. 1926.954(b)(2)(vii)(A)
and (b)(2)(vii)(B) will provide an additional measure of protection to
employees if a conductor or other energized part slips and lands on the
strap or if the strap slips from the employee's hand and lands on an
energized part. In response to Mr. Oracion's comment, the Agency notes
that the minimum approach distance will not always protect employees
exposed to electric-shock hazards. For example, minimum approach
distances do not apply to conductors on which work is being performed
by employees using rubber insulating gloves (as explained under the
discussion of Sec. 1926.960(c)(1) of the final rule). The proposed
withstand- and leakage-testing requirements will confirm that the
fabric used in the manufacture of the strap will provide insulation
from electrical contact and that the manufacturing process that created
the strap did not compromise the fabric's insulating properties.
Although the equipment may become contaminated during use, as noted by
Mr. Ahern, the inspection requirements in Sec. 1926.954(b)(3)(i) of
the final rule (discussed later in this section of the preamble) will
ensure that any contamination that can affect the insulating properties
of the equipment will be identified and removed. In addition, any
contamination will normally be on the portion of the positioning strap
in contact with a pole; the remaining portion of the strap will still
provide a measure of protection.
The testing requirements in final paragraphs (b)(2)(vii)(A) and
(b)(2)(vii)(B) are also equivalent to the tests required by ASTM F887-
12\e1\ (Section 15.3.1 and Note 2). It is not clear why ASTM included
the requirement that positioning straps pass a withstand test in a note
rather than in the rule itself. OSHA is including the requirement that
positioning straps be capable of passing a withstand test in the text
of final Sec. 1926.954(b)(2)(vii)(A) to make it clear that this
provision is mandatory. The Agency believes that straps currently being
manufactured and used usually meet the final provisions. There is no
evidence in the rulemaking record that current positioning straps do
not meet these requirements. Therefore, OSHA is including paragraphs
(b)(2)(vii)(A) and (b)(2)(vii)(B) in the final rule as proposed.
Paragraphs (b)(2)(vii)(C) and (b)(2)(vii)(D), which are being
adopted without substantive change from the proposal, contain new
requirements for positioning straps to be capable of passing tension
tests and buckle-tear tests. These tests are based on ASTM F887-04,
sections 15.3.2 and 15.3.3, and will ensure that individual parts of
positioning straps have adequate strength and will not fail during a
fall.\125\
---------------------------------------------------------------------------
\125\ These requirements are also contained in the latest
edition, ASTM F887-12\e1\, in Section 15.3.2 and 15.3.3.
---------------------------------------------------------------------------
Paragraph (b)(2)(vii)(E) requires positioning straps to be capable
of passing a flammability test (described in Table V-1). This
requirement, and the test in Table V-1, are based on ASTM F887-04,
Section 15.3.4.\126\ If an electric arc occurs while an employee is
working, the work-positioning equipment must be capable of supporting
the employee in case he or she loses consciousness. It is particularly
important for the positioning strap to be resistant to igniting,
because, once ignited, it would quickly lose its strength and fail.
---------------------------------------------------------------------------
\126\ This requirement is also contained in the latest edition,
ASTM F887-12\e1\, in Section 15.3.4.
---------------------------------------------------------------------------
Mr. Pat McAlister with Henry County REMC questioned the ``value in
the proposed arc testing requirement'' because his company was ``not
aware of any situation where exposure to thermal energy has contributed
to failure of'' positioning straps (Ex. 0210).
OSHA responds that, although paragraph (b)(2)(vii)(E) will help
ensure that positioning straps do not fail if an electric arc occurs,
the standard just requires positioning straps to be capable of passing
a flammability test; the standard does not require electric-arc
testing. As noted later in the discussion of Sec. 1926.960(g) of the
final rule, electric power generation, transmission, and distribution
work exposes employees to hazards from electric arcs. Paragraph
(b)(2)(vii)(E) of Sec. 1926.954 protects against some of those
hazards, including ignition of the positioning strap, which could lead
to failure of the strap and burns to the employee. ASTM F887 has
required positioning straps to be capable of passing a flammability
test since 1988, so the Agency is not surprised that Mr. McAlister is
not aware of failures of positioning straps in electric-arc exposures.
Having ASTM adopt a requirement for positioning straps to pass a
flammability test is evidence that the consensus of industry opinion is
that such testing is necessary. Therefore, OSHA is including paragraph
(b)(2)(vii)(E) in the final rule as proposed. (OSHA, however, has made
nonsubstantive, clarifying changes to final Table V-1.)
[[Page 20391]]
Paragraph (b)(2)(viii), which is being adopted without substantive
change from the proposal, requires the cushion part of a body belt to
be at least 76 millimeters (3 inches) wide, with no exposed rivets on
the inside. This requirement is equivalent to existing Sec.
1926.959(b)(2)(i) and (ii).
Existing Sec. 1926.959(b)(2)(iii), which requires the cushion part
of the body belt to be at least 0.15625 inches thick if made of
leather, was omitted from the final rule. The strength of the body belt
assembly, which this existing provision addresses, is now adequately
addressed by the performance-based strength criteria specified in final
Sec. 1926.954(b)(2)(xii) (discussed later in this section of the
preamble). Additionally, as noted previously, load-bearing portions of
the body belt may no longer be constructed of leather alone under
paragraph (b)(2)(v) of the final rule.
Paragraph (b)(2)(ix), which is being adopted without substantive
change from the proposal, requires that tool loops on a body belt be
situated so that the 100 millimeters (4 inches) at the center of the
back of the body belt (measured from D ring to D ring) are free of tool
loops and other attachments. OSHA based this requirement on ASTM F887-
04, Section 14.4.3, which is similar to existing Sec. 1926.959(b)(3).
This requirement will prevent spine injuries to employees who fall onto
their backs while wearing a body belt, which could happen to an
employee walking on the ground before or after climbing a pole.
Existing Sec. 1926.959(b)(2)(iv) requires body belts to contain
pocket tabs for attaching tool pockets. ASTM F887-04 also contained a
requirement that body belts have pocket tabs. In the proposal, OSHA
stated that it did not consider provisions regarding pocket tabs to be
necessary for the protection of employees; the Agency believed that
these requirements ensured that body belts were suitable as tool belts,
but did not contribute significantly to the safety of employees (70 FR
34851).
ASTM Committee F18 on Electrical Protective Equipment for Workers
clarified the purpose of the requirements for pocket tabs in the
consensus standard as follows:
[Pocket tabs are] addressed in ASTM F887-04, Section
14.4.1\[127]\ as follows: ``The belt shall have pocket tabs
extending at least 1\1/2\ (3.8 cm) down, and with the
point of attachment at least 3 in. (7.6 cm) back of the inside of
the circle dee rings on each side for the attachment of pliers or
tool pockets. On shifting dee belts, the measurement for pocket tabs
shall be taken when the dee ring section is centered.''
---------------------------------------------------------------------------
\127\ Section 14.3.1 in ASTM F887-12\e1\ contains an identical
requirement.
---------------------------------------------------------------------------
* * * * *
The primary reason for the specific placement of these pocket
tabs is to assist in eliminating the interference of tools being
carried on the belt with the proper engagement of a positioning
strap snaphook into the body belt dee ring.
Therefore, this detail is important for the safety of employees
using these body belts. [Ex. 0148]
The committee recommended that OSHA either adopt the ASTM language or
incorporate it by reference.
OSHA does not believe that pocket tabs are a hazard. The tabs are
flush with the body belt and extend down from it. They do not interfere
with the attachment of snaphooks to the D rings. OSHA agrees that tool
pockets fastened to the tabs, or the tools in those pockets, could
interfere under certain conditions. For example, a large tool or pocket
could interfere with the attachment of snaphooks and D rings even with
the tabs positioned as required by the consensus standard. The Agency
believes that this hazard is better addressed by the general
requirement in final paragraph (b)(3)(i) (discussed later in this
section of the preamble) that work-positioning equipment be inspected
to ensure that it is in safe working condition before use. In addition,
the ASTM committee did not explain why tabs are necessary in the first
place. Therefore, OSHA is not adopting the committee's recommendation
to add the ASTM requirement on pocket tabs in the final rule.
Existing Sec. 1926.959(b)(3) permits a maximum of four tool loops
on body belts. As explained in the preamble to the proposal, OSHA does
not believe that this provision is necessary for the protection of
employees (70 FR 34851). Like existing Sec. 1926.959(b)(2)(iv), this
requirement ensures only that body belts are suitable as tool belts.
OSHA received no comments on the proposed removal of this requirement,
and the final rule removes this requirement from subpart V.\128\
---------------------------------------------------------------------------
\128\ Existing Sec. 1926.959(b)(3) also requires the 100-
millimeter (4-inch) section of the body belt in the middle of the
back to be free of tool loops and other attachments. This portion of
the existing paragraph is retained as Sec. 1926.954(b)(2)(ix) in
the final rule, as described previously.
---------------------------------------------------------------------------
Paragraph (b)(2)(x), which is being adopted without change from the
proposal, requires copper, steel, or equivalent liners to be used
around the bars of D rings. This provision, which duplicates existing
Sec. 1926.959(b)(4), will prevent wear between the D ring and the body
belt fabric. Such wear could contribute to failure of the body belt
during use.
In paragraph (b)(2)(xi), OSHA proposed that snaphooks used as part
of work-positioning equipment be of the locking type. A snaphook has a
keeper designed to prevent the D ring to which it is attached from
coming out of the opening of the snaphook. (See Figure 1.) However, if
the design of the snaphook is not compatible with the design of the D
ring, the D ring can roll around, press open the keeper, and free
itself from the snaphook. (See Figure 2.)
[[Page 20392]]
[GRAPHIC] [TIFF OMITTED] TR11AP14.000
For many years, ASTM F887 had a requirement that snaphooks be
compatible with the D rings with which they were used. Even with this
requirement, however, accidents resulting from snaphook roll-outs still
occurred. As OSHA explained in the preamble to the proposal, several
factors account for this condition (70 FR 34852). First, while one
manufacturer can (and most do) thoroughly test its snaphooks and its D
rings to ensure ``compatibility,'' no manufacturer can test its
hardware in every conceivable combination with other manufacturers'
hardware, especially since some models of snaphooks and D rings are no
longer manufactured. While an employer might be able to test all of the
different hardware combinations with its existing equipment, the
employer normally does not have the expertise necessary to conduct such
tests in a comprehensive manner. Second, snaphook keepers can be
depressed by objects other than the D rings to which they are attached.
For example, a loose guy (a support line) could fall onto the keeper
while an employee is repositioning himself or herself. This situation
could allow the D ring to escape from the snaphook, and the employee
would fall as soon as he or she leaned back into the work-positioning
equipment. The locking-type snaphooks OSHA proposed to require will not
open unless employees release the locking mechanisms.
A few commenters objected to the requirement for locking snaphooks,
maintaining that existing pole straps with nonlocking snaphooks have
been used safely and effectively for many years. (See, for example,
Exs. 0210, 0225.) Mr. Jonathan Glazier with the National Rural Electric
Cooperative Association (NRECA) questioned the safety benefits of
locking snaphooks, commenting:
Is the cost of replacing the thousands of non-locking snaphooks
in use today outweighed by the benefit? Certainly workers are
familiar with the rudimentary technology presented by non-locking
snaphooks, so the danger they present is low. [Ex. 0233]
A majority of the rulemaking participants who commented on this
issue agreed that the proposed requirement for locking snaphooks was
justified. (See, for example, Exs. 0167, 0169, 0213; Tr. 579.) For
instance, Quanta Services commented that ``the current requirement [to
use] snaphooks compatible with the particular D rings with which they
are used is not sufficient because accidents from snaphook rollover
still occur'' and agreed with OSHA that the proposal to require locking
snaphooks ``will provide greater protection'' (Ex. 0169).
Snaphook rollout is a recognized hazard, as indicated by updated
requirements in the consensus standard. The ASTM committee believed
that the former requirement for compatibility between snaphooks and D
rings was inadequate to protect employees; thus, the committee included
a requirement for locking snaphooks in ASTM F887-04 (Ex. 0055).
Evidence in the record indicates that the committee was correct; one
exhibit showed that two workers were killed when the snaphooks they
were using apparently rolled out (Ex. 0003).\129\ OSHA considered the
record on this issue and concluded that the proposed requirement for
locking snaphooks is justified; therefore, the Agency is including the
proposed provision in the final rule.
---------------------------------------------------------------------------
\129\ Descriptions of these two accidents can be viewed at:
http://www.osha.gov/pls/imis/accidentsearch.accident_detail?id=922336&id=14340061.
---------------------------------------------------------------------------
Mr. Lee Marchessault with Workplace Safety Solutions recommended
that the term ``double locking type'' be used rather than ``locking
type'' (Ex. 0196; Tr. 579). His comment addressed the reference to
locking snaphooks in proposed paragraph (b)(3)(vi) (discussed later in
this section of the preamble), but, because paragraph (b)(2)(xi)
contains the requirement that snaphooks on positioning straps be of the
locking type, his comment applies equally here.
The devices specified in the standard are ``locking snaphooks.''
They are also known as ``double-locking snaphooks.'' However, this
latter term is a misnomer. There is only a single locking mechanism.
The keeper, which ``keeps'' the snaphook on the D ring, is not self-
locking. Consequently, these devices are correctly known as ``locking
[[Page 20393]]
snaphooks,'' and OSHA is using this term in the final rule.
In issuing the proposal, OSHA recognized that there might be
thousands of existing nonlocking snaphooks currently in use and
requested comment on whether it should phase in the requirement for
locking snaphooks for older equipment or allow employers to continue
using existing equipment that otherwise complies with the standard
until it wears out and must be replaced.
Several commenters recommended grandfathering existing equipment
and requiring that only newly purchased positioning straps be equipped
with locking snaphooks. (See, for example, Exs. 0162, 0175, 0210, 0224,
0225, 0227, 0233.) For instance, the Virginia, Maryland & Delaware
Association of Electric Cooperatives commented:
[G]randfathering existing equipment for those companies that
have not started utilizing locking snap-hooks is prudent. For
companies currently using older equipment, the requirement should be
that as the older equipment is phased out or worn out, new equipment
must be the locking snap-hook type. [Ex. 0175]
In addition, Mr. Glazier with NRECA was concerned that requiring an
immediate switch to locking snaphooks could lead to a shortage of
compliant equipment (Ex. 0233).
Other commenters argued that there should be little or no phase-in
period because nonlocking snaphooks have not been available for over 10
years and because employees would be left at risk. (See, for example,
Exs. 0148, 0199, 0212.) TVA commented that it had ``prohibited
nonlocking snaphooks for a number of years'' before OSHA's proposal
(Ex. 0213). The Southern Company and ASTM Committee F18 recommended a
phase-in period of no more than 12 months (Exs. 0148, 0212). Buckingham
Manufacturing Company recommended a phase-in period of no more than 3
months (Ex. 0199).
According to the ASTM committee, manufacturers stopped producing
nonlocking snaphooks before 1998 (Ex. 0148). In addition, evidence in
the record indicates that the average useful life of a body belt or
body harness is 5 years (Ex. 0080). The Agency believes that the useful
life of positioning straps (to which snaphooks are affixed) also is
approximately 5 years because they are made from the same materials and
are subject to the same conditions of use. Thus, any nonlocking
snaphooks still remaining in use are substantially beyond their
expected useful life and are probably in need of replacement. In
addition, there is evidence in the record that the vast majority of
positioning straps in use already have locking snaphooks. Mr. James
Tomaseski of IBEW testified that, based on a survey of the union's
members, 80 percent of electric utilities and contractors performing
work covered by the final rule require the use of locking snaphooks
(Tr. 976). He also testified that locking snaphooks are used even by
companies that do not require them and that there will not be a problem
with availability (Tr. 975-976). Therefore, OSHA concludes that a
phase-in period of 90 days should be adequate to comply with the
requirement. Compliance with paragraph (b)(2)(xi) is required on the
effective date of the final rule: July 10, 2014.
OSHA proposed three requirements for locking snaphooks to ensure
that keepers do not open without employees intentionally releasing
them. First, for the keeper to open, a locking mechanism would have to
be released, or a destructive force would have to be impressed on the
keeper (paragraph (b)(2)(xi)(A)). Second, a force in the range of 6.7 N
(1.5 lbf) to 17.8 N (4 lbf) would be required to release the locking
mechanism (paragraph (b)(2)(xi)(B)). Third, with a force on the keeper
and the locking mechanism released, the keeper must be designed not to
open with a force of 11.2 N (2.5 lbf) or less, and the keeper must
begin to open before the force exceeds 17.8 N (4 lbf) (paragraph
(b)(2)(xi)(C)).\130\ These requirements are based on ASTM F887-04,
section 15.4.1.\131\ Proposed paragraph (b)(2)(xi)(C), relating to the
spring tension on the keeper, was equivalent to existing Sec.
1926.959(b)(6).
---------------------------------------------------------------------------
\130\ In proposed paragraphs (b)(2)(xi)(B) and (b)(2)(xi)(C),
the metric units were not equal to the English units. The metric
units were corrected in the final rule.
\131\ These requirement are also contained in the latest
edition, ASTM F887-12\e1\, in Section 15.4.2.1.
---------------------------------------------------------------------------
Mr. Daniel Shipp with ISEA objected to these proposed requirements
and maintained that the provisions on work-positioning equipment should
be consistent with Sec. 1910.66 (Powered platforms for building
maintenance), Appendix C, and Sec. 1926.502 (Fall protection systems
criteria and practices), commenting:
Neither of these [existing] standards set forth detailed
specifications for the forces required to actuate the locking and
gate mechanisms of snaphooks. The determining factors that relate
most closely to incidents of accidental disengagement of a snaphook
from its connector are (a) the compatibility in size and shape of
the connecting element, and (b) the tensile strength of the gate in
the closed and locked position, which are fully discussed in 1910.66
and 1926.502. It is difficult to envision one range of force
requirements that would apply equally to all locking snaphooks
because of the wide variety of existing and possible snaphook
designs.
OSHA should limit its regulation of self-closing and self-
locking snaphooks to use in work positioning applications that
follow existing fall protection regulations. The addition of further
restrictive requirements will have the effect of possibly
eliminating otherwise safe and efficient equipment from the
marketplace without any demonstrable improvement in worker safety.
[Ex. 0211]
It is not clear from Mr. Shipp's comment whether he opposes the
requirement that snaphooks be of the locking type. If he does, there is
ample evidence in the record, as discussed previously, to support the
adoption of a requirement for locking snaphooks. Therefore, the Agency
will focus on his comments relating to the forces used to unlock and
open keepers. The proposed paragraphs ensure the adequacy of the
locking mechanism by requiring a destructive force to open the keeper
if it is not first unlocked and by specifying the minimum force
required to open the locking mechanism. The proposed paragraphs also
ensure that the keeper does not open unintentionally if the locking
mechanism is opened accidentally (for example, by a loose conductor
striking it), or if it breaks.
In addition to specifying minimum forces, the proposed paragraphs
specified the maximum forces necessary to open the locking mechanism
and the keeper when the locking mechanism is open. Because this
equipment is frequently used with rubber insulating gloves and leather
protectors, employees have limited dexterity when they are opening and
closing keepers (Ex. 0173). Snaphook keepers that are too difficult to
unlock or open by employees wearing rubber insulating gloves could
interfere with connecting a snaphook to a D ring and lead to falls. In
addition, employees develop a rhythm, buckling and unbuckling the
positioning straps into the D rings of their body belts (see, for
example, 269-Ex. 3-11). Snaphook keepers that are too difficult to
unlock or open will interfere with this rhythm, potentially leading to
falls. These conditions are not present for employees working from
power platforms covered by Sec. 1910.66 or in general construction
work covered by Sec. 1926.502.
As noted previously, existing subpart V already requires the
opening force on the keeper to be within the range specified in the
proposal. Also, the inclusion of similar provisions in ASTM F887 is
evidence that the ASTM committee concluded that there is a need for the
requirements proposed in paragraph (b)(2)(xi). For these reasons,
[[Page 20394]]
OSHA is including paragraphs (b)(2)(xi)(A), (b)(2)(xi)(B), and
(b)(2)(xi)(C) in the final rule as proposed. (As previously noted, OSHA
has corrected the metric units in these provisions in the final rule.)
Mr. Frank Owen Brockman of Farmers Rural Electric Cooperative
Corporation recommended that OSHA prohibit the use of any snaphook that
requires employees to remove gloves before opening the snaphook (Ex.
0173). As noted earlier, the objective performance requirements in
paragraph (b)(2)(xi) will ensure that snaphooks meeting the standard
are usable by employees wearing rubber insulating gloves and leather
protectors. The Agency does not believe that adding a requirement that
snaphooks be capable of being opened by an employee wearing gloves will
improve the safety of these devices. OSHA believes, however, that
employers will consider this facet of snaphook design when selecting
positioning straps, if only to minimize employee complaints.
Existing Sec. 1926.959(b)(7) requires body belts, safety straps,
and lanyards to be capable of passing a drop test in which a test load
is dropped from a specific height and the equipment arrests the fall.
The test consists of dropping a 113.4-kg (250-lbm) bag of sand a
distance of either 1.2 meters (4 feet) or 1.8 meters (6 feet), for
safety straps and lanyards, respectively.\132\
---------------------------------------------------------------------------
\132\ As noted earlier, existing Sec. 1926.959 covers body
belts, safety straps, and lanyards as both fall arrest and work-
positioning equipment. Paragraph (b)(2) of final Sec. 1926.954
covers only work-positioning equipment. Lanyards, which are used in
fall arrest and are not covered in final Sec. 1926.954(b)(2), have
to be capable of withstanding higher forces as required by Sec.
1926.502(d)(9).
---------------------------------------------------------------------------
OSHA explained in the preamble to the proposal that ASTM adopted a
different test in ASTM F887-04 (70 FR 34853). Under the existing OSHA
test, the bag of sand can be fitted with the body belt in different
ways, resulting in tests that are not necessarily consistent among
different testing laboratories. To overcome this problem, ASTM 887-04
adopted a drop test that uses a rigid steel mass of a specified design.
To compensate for differences between a rigid mass and the more
deformable human body, the ASTM standard uses a lower test mass, 100 kg
(220 lbm), and a shorter drop height, 1 meter (39.4 inches). OSHA
proposed to replace the drop test in existing Sec. 1926.959(b)(7) with
a test modeled on the test specified in the 2004 ASTM standard.\133\
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\133\ ASTM F887-12\e1\ specifies equivalent test procedures and
criteria for this equipment.
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Proposed paragraph (b)(2)(xii)(A) would have required the test mass
to be rigidly constructed of steel or equivalent material having a mass
of 100 kg (220.5 lbm). OSHA explained in the proposal that this mass
was comparable to the 113.4-kg (250-lbm) bag of sand that must be used
under the existing OSHA standard (70 FR 34853). Even though the
proposed test mass was lighter than a heavy power line worker, OSHA
explained that the proposed test method would place significantly more
stress on the equipment than an employee of the same mass because the
test drop was greater than the maximum permitted free-fall distance and
because the test mass was rigid (id.).
Proposed paragraphs (b)(2)(xii)(B) and (b)(2)(xii)(C) specified the
means used to attach body belts and positioning straps during testing.
These provisions would ensure that the work-positioning equipment being
tested was properly attached to the test apparatus.
Proposed paragraph (b)(2)(xii)(D) provided for the test mass to be
dropped an unobstructed distance of 1 meter (39.4 inches). OSHA
explained in the preamble that, for positioning straps, this distance
was equivalent (given the rigid test mass) to the existing standard's
test distance of 1.2 meters (4 feet) (70 FR 34853).
Proposed paragraphs (b)(2)(xii)(E) and (b)(2)(xii)(F) specified the
following acceptance criteria for tested equipment: (1) Body belts
would have had to arrest the fall successfully and be capable of
supporting the test mass after the test, and (2) positioning straps
would have had to successfully arrest the fall without breaking or
allowing an arresting force exceeding 17.8 kilonewtons (4,000 pounds-
force). Additionally, the proposal provided that snaphooks on
positioning straps not distort sufficiently to allow release of the
keeper.
OSHA requested comment on whether the proposed test was reasonable
and appropriate and, more specifically, whether the requirement for a
rigid test mass of 100 kg (220.5 lbm) dropped a distance of 1 meter
(39.4 inches) was sufficiently protective.
Most rulemaking participants who commented on this issue supported
the proposed requirements. (See, for example, Exs. 0126, 0199, 0230.)
For instance, IBEW commented:
This change has been accepted in the ASTM standard. The ASTM
Technical Subcommittee realized more consistent results were
necessary, and therefore, through experimentation with different
test methods, developed the test method using a specific design of a
rigid steel mass. OSHA should recognize this test method as the best
industry practice. [Ex. 0230]
Two commenters noted that the test mass specified in the proposed
rule was adequate for workers weighing up to 140 kg (310 lbm) (Exs.
0199, 0211). Mr. James Rullo of Buckingham Manufacturing explained:
The standard conversion factor used in the industry for the sand
bag to steel mass is 1.4 which when applied to the 220.5 lbm equates
to 310 lbm. That would seem to cover the general range of line
workers. In addition, the straight drop with the wire cable imposes
forces on the equipment which we believe to be more severe than most
falls that might be experienced by line workers. [Ex. 0199]
Mr. Daniel Shipp with ISEA supported the proposal's requirement for
testing with a 100-kg rigid test mass, but recommended a modification
for workers weighing more than 140 kg:
ISEA supports the change to a test mass of rigid steel
construction, weighing 100 kg (220 lb). Our members' experience in
testing fall protection products leads us to conclude that the rigid
mass will produce more repeatable results than testing with a sand-
filled bag. However, we believe the 100 kg test mass should only be
sufficient to qualify products for use by employees with a maximum
body weight up to 140 kg (310 lb). For employees with weights
greater [than] 140 kg (310 lb), including body weight, clothing,
tools and other user-borne objects, the test should be modified to
increase the test mass proportionately greater than 100 kg (220 lb).
For example, for a worker with an all-up weight of 160 kg (354 lb),
the test mass should be increased to 114 kg (251 lb). [Ex. 0211]
The ASTM committee and the fall-protection equipment-manufacturing
industry recognize the proposed tests as being reasonable and adequate.
As some of the commenters noted, the proposed test mass will impose
sufficient stress on work-positioning equipment for a worker weighing
140 kg (310 lbm), including tools and equipment. However, OSHA
concludes that the proposed test is insufficiently protective for
workers weighing more than 140 kg when fully equipped. Therefore, the
Agency is adopting paragraph (b)(2)(xii)(A) as proposed, except that
the final rule requires work-positioning equipment used by employees
with an equipped weight of more than 140 kg to be capable of passing
the same test, but with a test mass of proportionally greater mass
(that is, the test mass must equal the mass of the equipped worker
divided by 1.4). With this change, the final rule will ensure that
work-positioning equipment will adequately protect even the heaviest
workers. OSHA believes that, if any equipped worker has a mass greater
than 140 kg, the employer will order work-positioning equipment that is
adequate for the increased mass and that
[[Page 20395]]
manufacturers will supply work-positioning equipment that has been
tested with a mass that conforms to the standard.
In the final rule, OSHA is adopting the remaining provisions in
Sec. 1926.954(b)(2)(xii), namely paragraphs (b)(2)(xii)(B) through
(b)(2)(xii)(F), without substantive change from the proposal.
OSHA proposed three notes to paragraph (b)(2). The first note
indicated that paragraph (b)(2) applies to all work-positioning
equipment used in work covered by subpart V. The Agency is not
including this note in the final rule as it is unnecessary.
The Ohio Rural Electric Cooperatives suggested that, instead of the
specific provisions proposed in paragraph (b)(2), the standard require
only that belts be certified to ASTM F887-04 (Ex. 0186). A note to
final paragraph (b)(2) (Note 2 in the proposal), which appears after
final paragraph (b)(2)(xii)(F), provides that, when used by employees
weighing no more than 140 kg (310 lbm) fully equipped, body belts and
positioning straps that conform to ASTM F887-12 \e1\, the most recent
edition of that standard, are deemed to be in compliance with paragraph
(b)(2). This note clearly informs employers that body belts and
positioning straps meeting that consensus standard also meet the
testing requirements in OSHA's final rule. To avoid confusion, the
Agency removed the phrase ``the manufacturing and construction
requirements of,'' which modified ``paragraph (b)(2) of this section''
and which appeared in the proposal, from the language of this note in
the final rule. The purpose of this phrase was to describe the contents
of paragraph (b)(2) rather than restrict the application of the note.
The Agency restricted the application of the note in the final rule to
body belts and safety straps used by employees weighing no more than
140 kg (310 lbm), as the ASTM standard does not address this aspect of
the final rule.\134\
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\134\ Body belts and safety straps that meet ASTM F887-12\e1\,
but with the test weight adjusted as required by Sec.
1926.954(b)(2)(xii)(A), will be deemed to be in compliance with
final Sec. 1926.954(b)(2).
---------------------------------------------------------------------------
Note 2 in the proposal provided that work-positioning equipment
meeting the consensus standard also needed to meet proposed paragraphs
(b)(2)(iv), which specified tensile testing for snaphooks, and
(b)(2)(xi), which required snaphooks to be of the locking type. ASTM
Committee F18 stated that ASTM F887-04 contained nearly identical
requirements and suggested that the note omit references to those two
proposed paragraphs (Ex. 0148). OSHA agrees that ASTM F887-04
adequately covered all the requirements in final paragraph (b)(2), and
OSHA removed the two referenced paragraphs (paragraphs (b)(2)(iv) and
(b)(2)(xi)) from the note in the final rule. In addition, the Agency
reviewed the latest edition of the ASTM standard, ASTM F887-12\e1\, and
found that it also adequately addresses all of the design requirements
in the final rule. Consequently, the note in the final rule states
that, when used by employees weighing no more than 140 kg (310 lbm)
fully equipped, body belts and positioning straps meeting this later
edition of the consensus standard will be deemed as complying with
paragraph (b)(2).
OSHA also proposed a third note to paragraph (b)(2) indicating that
body belts and positioning straps meeting Sec. 1926.502(e) on
positioning device systems would be deemed to be in compliance with the
manufacturing and construction requirements of paragraph (b)(2) of
proposed Sec. 1926.954, provided that the equipment also conformed to
proposed paragraph (b)(2)(vii), which contained provisions addressing
electrical and flame-resistance tests for positioning straps, as well
as requirements for positioning straps to be capable of withstanding a
tension test and a buckle-tear test. The preamble to the proposal
explained that body belts and positioning straps that are parts of
positioning device systems addressed by Sec. 1926.502(e) serve the
same function as work-positioning equipment used for work covered by
subpart V (70 FR 34853). OSHA originally believed that body belts and
positioning straps that met the design criteria specified by Sec.
1926.502(e), as well as the provisions in proposed Sec.
1926.954(b)(2)(vii), would generally be sufficiently strong for power
line work.
OSHA reexamined the need for, and appropriateness of, proposed Note
3 to Sec. 1926.954(b)(2) in light of the rulemaking record for subpart
V. As indicated by Mr. Daniel Shipp with ISEA, Sec. 1926.502(e) does
not contain requirements comparable to those in final Sec.
1926.954(b)(2)(xi)(B) and (b)(2)(xi)(C) for the minimum and maximum
opening and closing forces for snaphook keepers and locking mechanisms.
As explained in the discussion of final Sec. 1926.954(b)(2)(xi)
earlier in this section of the preamble, OSHA believes that snaphooks
must meet these performance requirements to be adequately protective in
the conditions encountered by employees performing work covered by
Subpart V. In addition, Sec. 1926.502(e) does not contain requirements
comparable to several other provisions of final Sec. 1926.954(b)(2),
including those prohibiting leather in load-bearing components of body-
belt and positioning-strap assemblies (paragraph (b)(2)(v)),
prohibiting tool loops in the center 100 millimeters (4 inches) of the
back of a body belt (paragraph (b)(2)(ix)), and requiring a maximum
arresting force during the drop test (paragraph (b)(2)(xii)(F)). OSHA
believes that these also are important requirements necessary for the
safety of employees performing work covered by Subpart V. Consequently,
OSHA is not including Note 3 to proposed Sec. 1926.954(b)(2) in the
final rule.
Some commenters were concerned that the proposal required the tests
in paragraph (b)(2) to be conducted by the employer. (See, for example,
Exs. 0169, 0175, 0186.) OSHA notes that the final rule states that
work-positioning equipment must be ``capable'' of passing these tests.
The tests in the final rule could be performed by the manufacturer on
samples that are representative of the finished product. However, it
will be the employer's responsibility to ensure that it selects, and
has its employees use, a type of equipment that has been subject to
adequate testing by the manufacturer. The final rule does not require
employers to conduct the tests specified by paragraph (b)(2) when the
manufacturer conducts such testing. Employers will be able to
determine, in most instances, whether work-positioning equipment meets
the OSHA standard simply by ensuring that the manufacturer has tested
the equipment in accordance with the OSHA standard or ASTM F887-12
\e1\. The tests required by paragraph (b)(2) are potentially
destructive and should never be performed on work-positioning equipment
that will be used by employees (Exs. 0055, 0072).
Paragraph (b)(3) addresses the care and use of fall protection
equipment. As OSHA explained in the preamble to the proposal, fall
protection equipment provides maximum protection only when it is
properly used and maintained (70 FR 34853). Existing Sec.
1926.951(b)(3) requires this equipment to be inspected each day before
use. OSHA believed that this requirement had to be supplemented by
additional requirements to protect employees fully from fall hazards
posed by electric power transmission and distribution work and,
therefore, proposed to add requirements to subpart V, borrowed from
existing Sec. 1910.269(g)(2) and Sec. 1926.502(d) and (e), regulating
the care and use of fall protection equipment.
[[Page 20396]]
Paragraph (b)(3)(i) requires the employer to ensure that work-
positioning equipment is inspected before use each day to determine if
it is in safe working condition. (Paragraph (d)(21) of Sec. 1926.502
already contains a similar requirement for fall arrest equipment that
applies, and will continue to apply, to work covered by Subpart V.)
Paragraph (b)(3)(i) also prohibits the use of work-positioning
equipment that is not in safe working condition. The proposal was
worded to prohibit the use of ``defective equipment.'' OSHA replaced
this term in the final rule with ``equipment that is not in safe
working condition'' and added ``work-positioning'' before ``equipment''
to clarify that this provision applies to any condition that would make
work-positioning equipment unsafe. This language also makes it
consistent with the requirement in this paragraph to inspect the
equipment to determine if it is in ``safe working condition.'' This
paragraph ensures that protective equipment will be capable of
protecting employees when needed. This requirement is similar to
existing Sec. 1926.951(b)(3), except that the prohibition on the use
of unsafe equipment is now stated explicitly. A thorough inspection of
fall protection equipment can detect defects such as cracked snaphooks
and D rings, frayed lanyards, loose snaphook keepers, and bent buckles.
A note to this paragraph states that a guide to the inspection of this
equipment is included in Appendix F.
Paragraph (b)(3)(ii) requires personal fall arrest systems to be
used in accordance with Sec. 1926.502(d). Paragraph (d)(21) of Sec.
1926.502 provides: ``Personal fall arrest systems shall be inspected
prior to each use for wear, damage and other deterioration, and
defective components shall be removed from service.'' Removing
``defective'' equipment from service in accordance with Sec.
1926.502(d)(21) will ensure that employees are not using fall arrest
equipment that is not in safe working condition.\135\
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\135\ Subpart M, Appendix C, section II, paragraph (g) provides
examples of defects that require removing equipment from service.
Such defects include cuts, tears, abrasions, mold, or undue
stretching; alterations or additions which might affect the
efficiency of the equipment; damage due to deterioration; contact
with fire, acids, or other corrosives; distorted hooks or faulty
hook springs; tongues unfitted to the shoulder of buckles; loose or
damaged mountings; nonfunctioning parts; or wearing or internal
deterioration in the ropes.
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OSHA explained in the proposal that personal fall arrest equipment
is sometimes used as work-positioning equipment such that the employee
can lean into the body harness and perform work (70 FR 34854). In this
scenario, the normal attachment point would be at waist level.
Paragraph (d)(17) of Sec. 1926.502 requires the attachment point for
body harnesses to be located in the center of the employee's back near
shoulder level or above his or her head. As the Agency explained in the
preamble to the proposal, such an attachment could prevent the employee
from performing his or her job while the employee is using work-
positioning equipment (id.), so OSHA proposed to exempt fall arrest
equipment used as work-positioning equipment from this requirement if
the equipment was rigged so that the maximum free-fall distance was no
greater than 0.6 meters (2 feet).
Mr. Daniel Shipp with ISEA agreed with the proposal, commenting:
ISEA agrees with the proposed change to allow frontal-attachment
for personal fall arrest on equipment that is used for work
positioning, with a maximum permissible free fall distance of 0.6 m
(2 ft). [Ex. 0211]
OSHA reconsidered including this exception in the regulatory text
of paragraph (b)(3)(ii) and concluded that it is unnecessary. Fall
arrest equipment that is rigged for work positioning is considered to
be work-positioning equipment for the purposes of final Sec.
1926.954(b). When fall protection equipment is rigged for work
positioning, the equipment must meet the requirements in paragraph (b)
that apply to work-positioning equipment, and the provisions that apply
to fall arrest systems, including the anchorage requirement in Sec.
1926.502(d)(17), are not applicable. When fall protection equipment is
rigged to arrest falls, the equipment is considered to be a fall arrest
system, and the provisions for those systems apply. OSHA included a
note to paragraph (b)(3)(ii) to clarify this point.
In paragraph (b)(3)(iii), OSHA proposed to require the use of a
personal fall arrest system or work-positioning equipment by employees
working at elevated locations more than 1.2 meters (4 feet) above the
ground on poles, towers, and similar structures if other fall
protection has not been provided. As OSHA clarified in the proposal,
the term ``similar structures'' includes any structure that supports
electric power transmission or distribution lines or equipment, such as
lattice substation structures and H-frame wood transmission structures
(70 FR 34854). A similar requirement is in existing Sec.
1910.269(g)(2)(v). (In existing Sec. 1926.951(b)(1), OSHA requires
fall protection for ``employees working at elevated locations,'' but
does not specify a height at which such protection becomes necessary.)
Note 1 to proposed paragraph (b)(3)(iii) indicated that these fall
protection requirements did not apply to portions of buildings,
electric equipment, or aerial lifts, and referred to the relevant
portions of the construction standards that do apply in those instances
(that is, subpart M for walking and working surfaces generally and
Sec. 1926.453 for aerial lifts).\136\
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\136\ As noted earlier, the corresponding note in the final rule
does not pertain to fall protection for employees in aerial lifts or
reference Sec. 1926.453.
---------------------------------------------------------------------------
Many rulemaking participants commented on the proposed requirement
to use fall protection starting at 1.2 meters (4 feet) above the
ground. (See, for example, Exs. 0173, 0183, 0186, 0196, 0202, 0210,
0219, 0229, 0233, 0239; Tr. 575-576.) Two commenters recommended that
Subpart V mirror the Subpart M ``6-foot rule,'' in other words, that
fall protection not be required until an employee is 1.8 meters (6
feet) or more above the ground (Exs. 0196, 0219; Tr. 575-576). Lee
Marchessault with Workplace Safety Solutions commented:
[The proposal] requires fall protection when working at heights
greater than 4 feet, however the referrence [sic] to 1926 subpart M
requires 6 feet and therefore the fall protection system is designed
to engage at distances not more than 6 feet. This renders the system
useless for a 5 foot fall in some cases. An example may be working
on a trash platform of a hydro generation facility cleaning racks
that are 4.5 feet off the lower walking surface. A fall restraint
system works best, but workers are allowed to use a harness and 6
foot lanyard. [Ex. 0196]
Mr. Marchessault suggested in testimony at the 2006 public hearing that
using different length lanyards for different jobs would not be
feasible (Tr. 576). The Virginia Maryland & Delaware Association of
Electric Cooperatives commented that it did not see a need for OSHA to
set any height threshold for fall protection in the standard,
explaining: ``Line work is inherently different than other occupations
with climbing a necessary skill required in the trade. Therefore,
specification of a distance does not add additional safety to the
employee'' (Ex. 0175).
Other commenters supported the proposed 1.2-meter height or stated
that it generally has not presented problems since it was adopted in
existing Sec. 1910.269. (See, for example, Exs. 0186, 0211, 0213,
0230.) IBEW commented that ``[t]he 1910.269 requirement [for fall
protection starting at] 1.2 meters (4 feet) has proven not [to] be
problematic. The addition of 2 feet will not offer anything to the
requirement'' (Ex. 0230).
[[Page 20397]]
Most of the comments relating to the starting height for fall
protection were from electric cooperatives or their representatives who
recommended that OSHA not require fall protection until 3 meters (10
feet) above the ground for employees who are undergoing training. (See,
for example, Exs. 0183, 0186, 0202, 0210, 0229, 0233, 0239.) For
instance, Mr. Anthony Ahern of Ohio Rural Electric Cooperatives
commented:
[F]or training purposes it would be nice to have the option of
going to 10 feet without fall protection . . . under close
supervision. At a height of only 4 [feet] a climber really does not
get a sense of height. Using fall arrest equipment at higher levels
gives the new climber a false sense of security, can hinder mobility
and make it more difficult to move around the pole. Being able to
work new climbers up to 10 [feet] after demonstrating basic
abilities at lower levels would give the new climber a better sense
of working at heights and make it easier for trainers to determine
which [climbers] need additional training or who simply can not
handle working on a pole. [Ex. 0186]
NRECA maintained that ``in the highly-supervised and specially-equipped
environment of linemen training, the extra height adds very little, if
any extra danger'' (Ex. 0233).
As previously noted, the current requirement in Sec.
1910.269(g)(2)(v) for fall protection starts at 1.2 meters (4 feet),
and multiple commenters indicated that this provision is not causing
problems. (See, for example, Exs. 0186, 0230.) Adjustable-length
lanyards, retractable lanyards, and work-positioning equipment can
serve to accommodate the varying heights at which an employee will be
working (Ex. 0211). In addition, the relevant paragraph in the final
rule (Sec. 1926.954(b)(3)(iii)(B)) does not apply to the example
provided by Mr. Marchessault (the ``trash platform of a hydro
generation facility''), as such work locations are not ``poles, towers,
or similar structures.'' OSHA is not persuaded by the speculation that
employees undergoing training experience a ``false sense of security''
or that employees using fall protection cannot be successfully trained
in the use of free-climbing techniques. Employees undergoing training
can use combination body belt-body harness systems that attach both to
a retractable lanyard anchored to the top of a pole (for fall arrest)
and to a positioning strap (for work positioning). This arrangement
will ensure protection for the trainees until they master climbing
techniques. Any sense of security the employee experiences using such
equipment would not be ``false,'' but rather would be based on real
protection. There is evidence in the record that unprotected employees
in training to climb wood poles have been injured (Ex. 0003 \137\).
Several of these employees were climbing wood poles with wood chips at
the base of the pole. The chips did not protect the employees, and they
received serious injuries, for which all but one were hospitalized.
OSHA has previously taken the position that wood chips do not provide
adequate fall protection for employees, and the evidence in this
rulemaking does not support a different conclusion. Under final Sec.
1926.954(b)(3)(iii)(B), employers must provide employees with
appropriate fall protection when they are in training to climb wood
poles.\138\
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\137\ See, for example, the descriptions of five accidents at:
http://www.osha.gov/pls/imis/accidentsearch.accident_detail?id=170157069&id=170181432&id=170175269&id=170176630&id=170204267.
\138\ As stated in Note 2 to paragraphs (b)(3)(iii)(B) and
(b)(3)(iii)(C), employees who have not completed training in
climbing and the use of fall protection are not considered
``qualified employees'' for the purposes of paragraph
(b)(3)(iii)(C), which permits qualified employees to climb without
fall protection in limited situations.
---------------------------------------------------------------------------
The 1.2-meter threshold provides additional safety when compared to
higher thresholds. The speed with which an employee will strike the
ground increases with increasing height. An extra 0.6 meters (2 feet)
in height increases fall velocity by over 20 percent, substantially
increasing the potential severity of any injuries the employee
receives. An extra 1.8 meters (6 feet) in height increases fall
velocity by nearly 50 percent. After considering the comments in the
record, OSHA concluded that the rationales offered by these commenters
do not justify increasing the severity of the fall hazard by increasing
the height threshold. Therefore, OSHA is adopting the proposed
requirement for fall protection to start at 1.2 meters (4 feet) and,
for the reasons described previously, is not adopting a less protective
threshold for employees undergoing training.
Southern Company suggested that OSHA reference IEEE Std 1307-2004,
Standard for Fall Protection for Utility Work, for work on
transformers, circuit breakers, and other large equipment. That
standard requires fall protection at heights of 3.05 meters (10 feet)
and higher (Ex. 0212).
The duty to provide fall protection for work on electric equipment,
such as transformers and capacitors, is not in Subpart V or Sec.
1910.269, but rather in Part 1926, Subpart M, and Part 1910, Subpart D,
for construction and general industry, respectively. The application of
Subpart D rather than Sec. 1910.269 to walking-working surfaces other
than poles, towers, and similar structures was explained in the
preamble to the 1994 Sec. 1910.269 final rule (59 FR 4374) and in
letters of interpretation.\139\ The consensus standard's requirement
for fall protection at heights over 3.05 meters conflicts with the more
protective requirements in Subparts M and D. Also, for reasons noted
earlier, the Agency concluded that an increase in the 1.2-meter (4-
foot) and 1.8-meter (6-foot) threshold heights for initiating fall
protection in Subparts D and M, respectively, is not warranted. It
should be noted that IEEE Std 1307 is included in Appendix G, and
employers may find that it contains useful information on how to
provide fall protection for work covered by subpart V. However, OSHA
concludes that a nonmandatory reference to the consensus standard for a
situation to which Sec. 1926.954(b)(3)(iii) does not apply, as
recommended by Southern Company, would be inappropriate and misleading.
Note 1 to proposed Sec. 1926.954(b)(3)(iii) stated that ``[t]he duty
to provide fall protection associated with walking and working surfaces
is contained in subpart M of this part.'' However, the relevant portion
of existing Sec. 1926.500(a) seems to indicate otherwise, stating that
requirements relating to fall protection for employees engaged in the
construction of electric transmission and distribution lines and
equipment are provided in subpart V (see Sec. 1926.500(a)(2)(vi)).
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\139\ See, for example, the October 18, 1995, letter to Mr.
Lonnie Bell (http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=21981) and the December 18,
1997, letter to Mr. Dimitrios Mihou (http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=22508).
As was clear from Note 1 to proposed Sec. 1926.954(b)(3)(iii),
OSHA was proposing that the duty to provide fall protection for
general walking working surfaces, that is, everything other than
aerial lifts and poles, towers, and similar structures, would be
covered by subpart M. To clarify this point, in the final rule, OSHA
is revising Sec. 1926.500(a)(2)(vi) so that the subpart V exemption
applies only to the duty to provide fall protection for aerial lifts
---------------------------------------------------------------------------
and poles, towers, and similar structures.
Existing Sec. 1910.269(g)(2)(v) permits travel-restricting
equipment as an alternative to fall arrest or work-positioning systems.
OSHA proposed to omit the use of travel-restricting equipment as a
recognized fall protection system for electric power transmission and
distribution work on poles, towers, and similar structures. In the
preamble to the proposal, the Agency explained that travel-restricting
equipment is only appropriate for work
[[Page 20398]]
on open-sided platforms, where employees can walk around the working
surface with the travel-restricting equipment keeping them from
approaching too close to an unguarded edge (70 FR 34854). When it
published the proposal, the Agency did not believe that this type of
working surface could be found on poles, towers, or similar structures
(id.). Therefore, OSHA did not include travel-restricting equipment as
an acceptable fall protection system in proposed Sec.
1926.954(b)(3)(iii) and proposed to remove the reference to travel-
restricting equipment in existing Sec. 1910.269(g)(2)(v), but invited
comments on this omission.
Many commenters argued that there are surfaces used in work covered
by Subpart V for which travel-restricting equipment is appropriate and
recommended that OSHA restore travel-restricting equipment as an
alternative form of fall protection. (See, for example, Exs. 0126,
0173, 0183, 0201, 0202, 0210, 0225, 0229, 0230, 0233, 0239.) However,
few of these commenters provided specific, relevant examples. IBEW
commented that travel-restricting equipment is sometimes used when an
employee is transferring from a crossarm to a hook ladder or working or
climbing above an energized circuit (Ex. 0230). In addition, Duke
Energy asserted that the top of large transformers and rooftop
installations were places where travel-restricting equipment could be
used (Ex. 0201).
OSHA concludes that the examples provided by IBEW and Duke Energy
are not relevant because the paragraph at issue does not apply to the
tops of transformers or rooftops. Also, travel-restricting equipment,
which is used to protect employees from fall hazards at unprotected
edges, is not an appropriate form of fall protection for employees
transferring from one location to another or for employees working or
climbing above energized equipment.
Several commenters maintained that open-sided platforms are found
on electric utility structures. (See, for example, Exs. 0126, 0183,
0202, 0229, 0233, 0239.) One of them, BGE, commented that it still has
some open-sided platforms on switch structures (Ex. 0126).
OSHA previously concluded that equipment that can prevent an
employee from falling, such as fall restraint equipment, is an
acceptable form of fall protection. This conclusion is consistent with
Agency policy as indicated in several letters of interpretation. (See,
for example, letter dated November 2, 1995, to Mr. Mike Amen, http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=21999, and letter dated August 14, 2000, to
Mr. Charles E. Hill, http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=24110.) The term ``travel
restricting equipment'' appears only in existing Sec. 1910.269; the
equivalent terms ``restraint system'' and ``tethering system'' are used
consistently throughout other OSHA standards, such as Sec.
1926.760(a)(1), and official letters of interpretation (id.). The term
``fall restraint system,'' as defined in Sec. 1926.751 (in the steel
erection standard), is a broad term that OSHA generally uses to refer
to any equipment that prevents employees from falling. Thus, ``fall
restraint'' includes travel-restricting equipment, tethering systems,
and other systems that prevent falls from occurring. On the basis of
comments received on travel-restricting equipment, OSHA believes that
there are situations in which fall restraint systems can be used to
protect employees performing work on poles, towers, and similar
structures; therefore, the final rule includes these systems as an
acceptable form of fall protection.
In reviewing the rulemaking record for Sec. 1926.954, the Agency
noted situations in which commenters appeared confused about the proper
use of the various forms of fall protection. For example, the tree care
industry believed that it was acceptable for employees working from
aerial lifts to use work-positioning equipment (Exs. 0174, 0200, 0502,
0503), and IBEW condoned the use of travel-restricting equipment in
what appear to be fall-arrest situations (Ex. 0230). OSHA adopted two
changes in the final rule to clarify these terms. First, in Sec. Sec.
1910.269(x) and 1926.968, OSHA is defining the three forms of fall
protection listed in paragraph (b)(3)(iii) of the final rule.
The final rule defines ``personal fall arrest system'' as a system
used to arrest an employee in a fall from a working level. This
definition is borrowed from Sec. 1926.500(b) in subpart M. The Agency
is not, however, including the descriptive text following the
definition in Sec. 1926.500(b), which describes the various parts of
personal fall arrest systems. Although this description is not a
necessary part of the definition, OSHA notes that it describes personal
fall arrest systems as consisting of an anchorage, connectors, and a
body harness and indicates that such equipment may include a lanyard,
deceleration device, lifeline, or suitable combinations of these.
The final rule defines ``work-positioning equipment'' as a body
belt or body harness system rigged to allow an employee to be supported
on an elevated vertical surface, such as a utility pole or tower leg,
and work with both hands free while leaning. This definition is based
on the definition of ``positioning device system'' in Sec. 1926.500(b)
in subpart M. However, OSHA is replacing the example of vertical
surface work in the subpart M definition with examples of vertical
surfaces that are commonly found in electric power generation,
transmission, and distribution work and that are covered by the final
rule.
Finally, the final rule defines ``fall restraint system'' as a fall
protection system that prevents the user from falling any distance.
This definition is borrowed from Sec. 1926.751, which specifies
definitions for the steel erection standard in subpart R of part 1926.
The Agency is not including the descriptive text following the
definition, which describes the various parts of fall restraint
systems. Although this description is not a necessary part of the
definition, OSHA notes that it describes such systems as consisting of
either a body belt or body harness, along with an anchorage, connectors
and other necessary equipment. The final rule does not specify strength
requirements for fall restraint systems; however, the system must be
strong enough to restrain the worker from exposure to the fall
hazard.\140\
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\140\ OSHA recommended more specific strength criteria in a
letter of interpretation dated November 2, 1995, to Mr. Mike Amen
(http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=21999). This letter stated: ``OSHA has
no specific standards for restraint systems, however, we suggest
that as a minimum, fall restraint systems should have the capacity
to withstand at least twice the maximum expected force that is
needed to restrain the person from exposure to the fall hazard. In
determining this force, consideration should be given to site-
specific factors such as the force generated by a person walking,
leaning, or sliding down the working surface.''
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Second, OSHA is adding the phrase ``as appropriate'' to the
requirement in paragraph (b)(3)(iii)(B) to provide a personal fall
arrest system, work-positioning equipment, or fall restraint system on
poles, towers, or similar structures. This addition will make it clear
that the system the employer chooses to implement must be appropriate
for the situation, as indicated by the respective definitions. For
example, because work-positioning equipment, by definition, is to be
used on a vertical working surface, it would be inappropriate to use
this equipment on horizontal working surfaces, such as a crossarm or
horizontal tower arm.
[[Page 20399]]
With these modifications, the relevant provision in the final rule,
which is in paragraph (b)(3)(iii)(B), states that, except as provided
in paragraph (b)(3)(iii)(C), each employee in elevated locations more
than 1.2 meters (4 feet) above the ground on poles, towers, or similar
structures must use a personal fall arrest system, work-positioning
equipment, or fall restraint system, as appropriate, if the employer
has not provided other fall protection meeting Subpart M.
In the final rule, OSHA also added the phrase ``meeting subpart M
of this part'' to clarify that the requirements of Subpart M apply to
other forms of fall protection. The Agency is making a corresponding
clarification in final Sec. 1910.269(g)(2)(iv)(C)(2) that ``other fall
protection'' must meet the general industry fall protection
requirements in subpart D.
The Southern Company recommended that OSHA not specify the type of
fall protection equipment to be used for open-sided platforms (Ex.
0212).
The language OSHA is adopting in paragraph (b)(3)(iii)(B) of the
final rule provides the employer some latitude in deciding which form
of fall protection is appropriate for employees working at elevated
locations on poles, towers, and similar structures. However, the rule
requires that the selected fall protection equipment be appropriate for
the fall hazard. Using equipment for an application for which it is not
designed exposes employees to hazards that were not considered in the
design of the equipment. For example, an employee using work-
positioning equipment in a fall-arrest situation could fall out of the
equipment or be injured by fall-arrest forces. Thus, the Agency
concludes that employers must select fall protection equipment that is
appropriate for the hazard to which the employee is exposed.
Consequently, an employee exposed to a fall hazard on an open-sided
platform more than 1.2 meters (4 feet) above the ground must use either
a fall arrest system or a fall restraint system, with the fall
restraint system eliminating exposure to the fall hazard altogether.
Proposed paragraph (b)(3)(iii) included an exemption from fall
protection requirements for qualified employees climbing or changing
locations on poles, towers, or similar structures unless conditions,
such as ice or high winds, could cause the employee to lose his or her
grip or footing. Two rulemaking participants objected to the proposed
provision allowing qualified employees to climb or change location
without using fall protection (Exs. 0130, 0196; Tr. 576-579). NIOSH
recommended ``that fall protection equipment be used by all employees,
including qualified employees, climbing or changing location on poles,
towers, and other walking/working surfaces that present a potential
fall hazard in both general industry and construction'' (Ex. 0130).
NIOSH supported its recommendation with a report that summarized
surveillance data and investigative reports of fatal work-related falls
from elevations (Ex. 0144). The first report noted that, according to
National Traumatic Occupational Fatalities surveillance-system data, 23
percent of fatal falls in the transportation/communications/public
utilities sector were from structures, predominantly poles and towers.
This report provided detailed information about two fatalities
involving employees performing work on poles or towers covered by this
final rule:
A power line worker died in a fall from a utility pole. As
he was securing his positioning strap around the pole, he contacted a
120-volt conductor and fell as he tried to free himself from the
conductor. He landed on his head and died of a broken neck.
A painter died in a fall from an electric power
transmission tower. As the employee unhooked his lanyard to reposition
himself on the tower, he lost his balance and fell to the ground. He
died of massive internal trauma sustained in the fall.
In both of these cases, NIOSH recommended evaluating the
possibility of using 100-percent fall protection, including using fall
protection while employees climb and relocate.
Lee Marchessault of Workplace Safety Solutions also recommended
requiring fall protection for employees climbing or changing location
on poles, towers, or similar structures, commenting:
I have asked line workers in many companies if they have
``cutout'' (gaffs released and fallen to some extent from a pole).
\[141]\ The answer is almost universal, most (more than 90%) have
cutout at lease once. The resulting injury is usually a nasty sliver
from a treated wood pole or minor bruises or broken bones. This is a
known hazard and yet it is allowed to continue even though there are
devices that prevent this injury. This section should be eliminated
from this regulation and replaced with ``fall restraint devices are
required from the ground for climbing poles or similar structures
more than 6 feet and these devices shall be of a type that cannot be
defeated where practicable''. In other words, systems modifying
existing pole straps, or pole mounted devices that need to be
installed once you arrive would not be allowed because free-climbing
is still or may still be done. Pole top mounted retractable devices
protect from free fall but will not prevent slowly slipping down the
pole picking up slivers from every gaff cut along the way. A system
such as or similar to Buckingham's Bucksqueeze fall protection belt
would meet this requirement. Regarding towers and structures, there
is equipment or options available for most circumstances. [Ex. 0196]
\141\ A line worker using positioning equipment on a wood pole
uses pole climbers, leg irons that are strapped to the worker's
legs. A gaff, or spike, protrudes from the leg iron. The gaffs
penetrate the wood of the pole and support the weight of the worker.
A cutout occurs when the gaff slips out of the wood, allowing the
worker to fall.
Mr. Marchessault recognized, however, that there may be times when it
is not feasible to provide protection and suggested that the standard
---------------------------------------------------------------------------
account for those situations (Tr. 595).
Other rulemaking participants supported the proposed provision in
paragraph (b)(3)(iii) that permitted qualified employees to free climb
without fall protection. (See, for example, Exs. 0167, 0185, 0212.) For
instance, Mr. John Vocke with Pacific Gas and Electric Company (PG&E)
recommended that OSHA retain the exception allowing employees to free
climb poles and towers, commenting:
PG&E submits that the ``free climbing'' of utility poles and/or
towers should continue to be permitted by the OSHA regulations. As
more cable television, telephone and communication equipment is
situated on utility poles, safe climbing space on these structures
becomes a consideration. In order for line workers to access
overhead electric facilities, in some instances, free climbing is a
safer alternative. [Ex. 0185]
Whether to provide fall protection for employees climbing poles,
towers, and similar structures was an issue in the 1994 Sec. 1910.269
rulemaking. Participants in that rulemaking submitted substantial
evidence on the need for, and feasibility of, providing such
protection. Based on accident data submitted to that record in several
exhibits, the Agency found that employees are at risk of injury when
free climbing:
[T]hese exhibits demonstrate that electric power generation,
transmission, and distribution workers face a significant risk of
serious injury due to falls under current industry practices. To
determine the extent to which they face hazards addressed by
proposed Sec. 1910.269(g)(2)(v), OSHA analyzed fall accidents
included in various exhibits contained in the rulemaking record. . .
. [E]mployees do fall while climbing poles, towers, or similar
structures--26 percent of the falling accidents related to Sec.
1910.269 occurred in this manner. The evidence in the record
indicates that climbing a pole, tower, or similar structure is not
as safe, under current industry practices, as some of the hearing
witnesses testified. Therefore, the
[[Page 20400]]
Agency has decided that the final standard must provide additional
protection beyond that provided by the existing industry practices.
. . . [59 FR 4373]
Although OSHA concluded that it was not always safe to free climb,
the Agency ``accepted the position that it is not always necessary for
a qualified employee to use a pole strap when climbing an unstepped
wooden pole'' (id.) Therefore, in existing Sec. 1910.269(g)(2)(v),
OSHA adopted a rule, identical to that proposed in paragraph
(b)(3)(iii), that allowed free climbing ``unless conditions . . . could
cause the employee to lose his or her grip or footing.'' OSHA believed
that the rule adopted in Sec. 1910.269 would ensure that employees
were protected when conditions were most likely to lead to falls.
The Agency examined the accident information in the current record
to determine if the rule in existing Sec. 1910.269(g)(2)(v) has
reduced climbing-related accidents. Table 3 presents relevant accident
information from the 1994 record, and from the record in this
rulemaking, to show the number of fall accidents occurring over time.
Table 3--Falls by Year
----------------------------------------------------------------------------------------------------------------
Number of accidents \2\
Type of fall \1\ -------------------------------------------------------------------------------
1981-1989 1991-1993 1994 1995 1996 1997 1998 1999
----------------------------------------------------------------------------------------------------------------
Climbing \3\.................... 11 15 3 5 2 3 1 3
At work location................ 7 5 0 0 0 0 0 1
Other (not stated).............. 3 0 0 0 0 0 0 0
Failure of Structure............ 12 6 0 0 1 2 0 2
----------------------------------------------------------------------------------------------------------------
Notes: 1. The table only includes falls from poles, towers, and similar structures.
2. Each accident involves the death or serious injury of one or more employees.
3. Climbing includes descending and changing location.
Sources: 1981-1989--Table 1 in the preamble to the 1994 Sec. 1910.269 final rule (59 FR 4373).
1991-1999--Exs. 0003 and 0400.
The number of accidents in the years 1991 through 1999 are based on
OSHA IMIS data. Because IMIS reports are based on investigations
resulting from employer reports of accidents, and because employers are
not required to report accidents that do not involve a fatality or the
hospitalization of three or more employees, it is likely that IMIS data
substantially undercount the number of nonfatal injuries. Even without
adjusting for potential undercounting, however, the table shows that
employees still face a significant risk of being severely injured in a
fall while climbing poles, towers, or similar structures. In the 3
years before Sec. 1910.269 was promulgated, employees climbing poles,
towers, or similar structures experienced five accidents per year, on
average. In the first 6 years after that standard was promulgated,
there were approximately three accidents per year, on average, for a
reduction of two accidents per year, on average.\142\ This is in sharp
contrast to the reduction in the number of falls experienced by
employees at the work location on poles, towers, and similar
structures. This type of accident has largely disappeared since OSHA
issued Sec. 1910.269.
---------------------------------------------------------------------------
\142\ OSHA examined accident data for electric utilities for the
years 2009 and 2010. In that industry alone, four employees were
injured (three fatally) when they fell from structures supporting
overhead power lines. (See the descriptions of these four accidents
at: http://www.osha.gov/pls/imis/accidentsearch.accident_detail?id=202469680&id=202489316&id=201491990&id=201859964.) In half
the cases, the employees were climbing or changing location.
---------------------------------------------------------------------------
In addition, more than a third of the falls experienced by
employees climbing wood structures occurred when the employee's gaff
cut out of the wood and caused the employee to fall to the ground (Exs.
0003, 0004). This is also the experience reported by Mr. Marchessault
of Workplace Safety Solutions (Tr. 578). Federal and State compliance
records reported that the poles involved in two of the gaff cutout
accidents reflected in Table 3 had no observable defects (Ex.
0003\143\). Even though both of those accidents occurred before Sec.
1910.269 was promulgated, it is likely that nothing in that standard
would have prevented those accidents. Based on the comments, Mr.
Marchessault's testimony, and the accident descriptions in the record,
OSHA concludes that gaff cutout is pervasive, cannot be reliably
predicted, and can lead to death or serious physical harm. (Mr.
Marchessault described the injuries as ``slivers'' in his testimony,
but injuries from gaff cutout accidents have included such serious
injuries as severe fractures, a concussion, and a collapsed lung for
which the injured employees were hospitalized (Exs. 0003, 0400).\144\)
---------------------------------------------------------------------------
\143\ See the descriptions of the two accidents at: http://www.osha.gov/pls/imis/accidentsearch.accident_detail?id=170374144&id=170611693.
\144\ OSHA also has documentation, not included in this
analysis, of three instances in which employees were killed when
they fell from utility poles as a result of gaff cutout (http://www.osha.gov/pls/imis/accidentsearch.accident_detail?id=170252852&id=14422471&id=14412209).
---------------------------------------------------------------------------
The current rule in Sec. 1910.269 requires employers to protect
employees from falling while climbing or changing location under
specified circumstances, and evidence in this record indicates that in
many, if not all, circumstances it is feasible for employees to climb
and change locations while protected. For example, Mr. Marchessault of
Workplace Safety Solutions testified that there are ``equipment options
available for most circumstances [involving employees climbing or
changing location]'' (Tr. 576); Mr. Steven Theis of MYR testified that
he was aware that one utility required 100-percent fall protection (Tr.
1357); and IBEW noted that some employers require ``fulltime attachment
while climbing and working on a wood pole'' \145\ (Ex. 0230). According
to an IBEW survey of 102 IBEW construction locals, more than a quarter
of 93 locals responding to one question in the survey reported that
``the employer require[s] continuous attachment to the pole when
climbing,'' and nearly a third of 91 locals responding to another
question reported that ``the employer require[s] continuous attachment
to the
[[Page 20401]]
structure when climbing'' (Ex. 0230). The preamble to the 1994 final
rule for Sec. 1910.269 noted that the Electrical Division of the
Panama Canal Commission and Ontario Hydro in Canada required fall
protection for their employees while they work on elevated structures
(59 FR 4372-4373).
---------------------------------------------------------------------------
\145\ OSHA concludes that, in describing the ``climbing'' of
poles or structures, rulemaking participants used the term
``climbing'' broadly to indicate any employee movement, including
``changing location,'' on poles or structures, as climbing a pole or
structure to get to the working position involves the same
horizontal and vertical movements as changing location vertically or
horizontally on a pole or structure. OSHA also concludes that, in
this context, rulemaking participants used the term ``working''
narrowly to indicate the activity of working in stationary positions
on poles or structures and not broadly to also indicate the activity
of climbing or changing location on poles or structures.
---------------------------------------------------------------------------
There are several new forms of work-positioning equipment that can
provide continuous attachment for employees climbing or changing
location on poles, towers, and similar structures. The preamble to the
proposal noted the Pole Shark and Pole Choker (70 FR 34855).\146\ Two
commenters pointed to the BuckSqueeze as another work-positioning
system that can provide continuous attachment while employees are
climbing or changing location on wood structures (Ex. 0199; Tr.
578).\147\ A video of this equipment being used demonstrates that an
employee proficient in its use can ascend and descend poles with
relative ease while being protected from falling (Ex. 0492). Rulemaking
participants indicated that fall protection equipment is available to
protect employees climbing or changing location on towers and similar
structures (Exs. 0144, 0196). This equipment includes rail and rope-
grab systems to which an employee can attach a harness and a lanyard,
retractable lanyards attached above the employee, and double-lanyard
systems (Ex. 0199; Tr. 578, 587 \148\). OSHA believes that these, and
similar new, devices make it easier to provide fall protection for
employees climbing or changing location on poles, towers, and similar
structures, as evidenced by the growing prevalence of employers
requiring 100-percent attachment. Therefore, OSHA concludes that
employees climbing or changing location on poles, towers, and similar
structures can use fall protection under more conditions than required
by existing Sec. 1910.269(g)(2)(v).
---------------------------------------------------------------------------
\146\ A Pole Shark is a device that uses jaws and a spur wheel
to grip the pole and provide an anchorage for climbing wood poles. A
Pole Choker is a pole strap with an integrated choker strap. The
employee tightens the choker strap against the pole to prevent the
pole strap from sliding down the pole. Note that, throughout this
notice, references to these and other products are examples only and
do not constitute an endorsement by OSHA.
\147\ A BuckSqueeze is a pole strap with an integrated choker
strap. The employee tightens the choker strap against the pole to
prevent the pole strap from sliding down the pole.
\148\ Mr. Marchessault described a double-strap system for use
on a pole (Tr. 587). OSHA believes that employers can adapt this
system, using lanyards in place of positioning straps, for use on a
tower or similar structure.
---------------------------------------------------------------------------
However, OSHA also concludes that there may be circumstances that
preclude the use of fall protection while employees are climbing or
changing location. For example, Mr. James Tomaseski of IBEW testified,
``[O]n congested poles, to be able to ascend the pole to your working
area could be a major task in itself. On the congested poles it is
enough of a task already, but adding to the point that you have to stay
connected the entire time, it would be at best difficult'' (Tr. 977).
Mr. Theis of MYR Group echoed these concerns:
[Employees] are using [pole chokers] now. And some of the guys
are telling us they can't be used in all situations. In a lot of
situations, they can be. When they start getting into a very
congested pole, very congested area, they become more cumbersome
than they are of any benefit. [Tr. 1357]
Consequently, OSHA decided to modify the provision proposed in
paragraph (b)(3)(iii) (paragraph (b)(3)(iii)(C) in the final rule) to
require fall protection even for qualified employees climbing or
changing location on poles, towers, or similar structures, unless the
employer can demonstrate that the conditions at the worksite would make
using fall protection infeasible or would create a greater hazard for
employees climbing or changing location on these structures while using
fall protection. This rule will ensure that 100-percent fall protection
is the default procedure when employees are working on these structures
and, therefore, will better protect employees than the current
requirement. Based on the rulemaking record, OSHA would consider it
feasible to use fall protection while climbing or changing location on
a structure with few or no obstructions. Employers may, however, make
reasonable determinations of what conditions, for example, the degree
of congestion on a pole, would result in a greater hazard for employees
climbing with fall protection than without fall protection. Employers
making these determinations must consider the use of devices that
provide for continuous attachment and should account for other
conditions that would make climbing or changing location without fall
protection unsafe, including such conditions as ice, high winds, and
the other conditions noted in existing Sec. 1910.269(g)(2)(v). In
addition, OSHA notes that this provision does not affect fall
protection requirements in final Sec. 1926.954(b)(3)(iii)(B) for
employees once they reach the work location.
Because the final rule permits qualified employees to climb or
change location without fall protection under limited circumstances,
the Agency anticipates that it will be necessary for employees to
occasionally defeat the continuous attachment feature on the fall
protection equipment. Therefore, OSHA decided not to require the
equipment used to meet paragraph (b)(3)(iii)(C) of the final rule to be
incapable of being defeated by employees, as recommended by Mr.
Marchessault (Ex. 0196).
Even though under existing Sec. 1910.269(g)(2)(v) there already
are some circumstances in which employers must provide equipment that
will protect employees who are climbing or changing location on
structures, OSHA believes that many employers covered by the final rule
will need additional time to explore options to select equipment that
best protects their employees while climbing or changing location. In
some cases, the equipment employers currently are providing may not be
ideal for everyday use. In addition, employers will need time to train
employees to become proficient in the use of any new equipment. Before
employees gain proficiency, it is possible that not only will they have
difficulties climbing or changing location on structures, but the
equipment may distract them from climbing or changing location safely.
As noted by Mr. Gene Trombley, representing EEI in the 1994 rulemaking,
``To suddenly try to require them to change years and years of training
and experience would, I feel, cause a serious reduction in that high
level of confidence and ability'' (DC Tr. 853, as quoted in the
preamble to the 1994 rulemaking, 59 FR 4372).\149\ Therefore, OSHA is
giving employers until April 1, 2015, to comply with the new
requirements in Sec. 1926.954(b)(3)(iii)(C) of the final rule. This
delay should provide sufficient time for employers to: Evaluate the
various types of fall protection equipment that employees climbing or
changing location can use; select and purchase the type of equipment
that best satisfies their needs; train employees in the use of this
equipment; and certify that the employees demonstrated proficiency in
using the equipment.
---------------------------------------------------------------------------
\149\ This transcript is available for inspection and copying in
OSHA's Docket Office, Docket No. S-015, U.S. Department of Labor,
200 Constitution Avenue NW., Room N2625, Washington, DC 20210;
telephone (202) 693-2350. (OSHA's TTY number is (877) 889-5627.)
OSHA Docket Office hours of operation are 8:15 a.m. to 4:45 p.m.,
ET.
---------------------------------------------------------------------------
In the intervening period, paragraph (b)(3)(iii)(C) of the final
rule will apply the existing rule from Sec. 1910.269, which permits
qualified employees to climb and change location without fall
protection as long as there are no conditions, such as ice, high winds,
the
[[Page 20402]]
design of the structure (for example, no provision for holding on with
hands), or the presence of contaminants on the structure, that could
cause the employee to lose his or her grip or footing. The conditions
specifically listed in the standard are not the only ones warranting
the use of fall protection for climbing and changing position. Other
factors affecting the risk of an employee's falling include the level
of competence of the employee, the condition of a structure, the
configuration of attachments on a structure, and the need to have both
hands free for climbing. Moreover, if the employee is not holding onto
the structure (for example, because the employee is carrying tools or
equipment in his or her hands), the final rule requires fall
protection. Video tapes entered into the 1994 Sec. 1910.269 rulemaking
record by EEI (269-Ex. 12-6), which EEI claimed represented typical,
safe climbing practices in the utility industry, show employees using
their hands to provide extra support and balance.\150\ Climbing and
changing location in this manner will enable an employee to continue to
hold onto the structure in case his or her foot slips. When employees
are not using their hands for additional support, they are much more
likely to fall as a result of a slip.
---------------------------------------------------------------------------
\150\ Exhibits in the 1994 Sec. 1910.269 rulemaking record
(denoted as ``269-Ex'') also are available in Docket Number S-015.
---------------------------------------------------------------------------
All of these revisions, including the revisions related to fall
protection for employees working from aerial lifts described earlier in
this section of the preamble, appear in final Sec.
1926.954(b)(3)(iii).
Paragraph (e)(1) of Sec. 1926.502 limits the maximum free-fall
distance for work-positioning systems to 0.6 meters (2 feet). OSHA
proposed to adopt this same limit in Sec. 1926.954. However, in
electric power transmission and distribution work, permanent anchorages
are not always available. Many utility poles provide no attachment
points lower than the lowest crossarm. If an employee is working below
the crossarm, there would be no place on the pole where he or she can
attach the work-positioning equipment. The preamble to the proposed
rule explained that, in such cases, work-positioning equipment still
provides some degree of fall protection in that the equipment holds the
employee in a fixed work position and keeps him or her from falling (70
FR 34855). Therefore, OSHA proposed in paragraph (b)(3)(iv) to require
work-positioning equipment to be rigged so that the employee could free
fall no more than 0.6 meters (2 feet), unless no anchorage was
available. In the preamble to the proposed rule, OSHA requested comment
on whether proposed paragraph (b)(3)(iv) would provide sufficient
protection for employees and on whether portable devices (such as a
Pole Shark, Pole Choker, or similar device) could be used as suitable
anchorages.
Some commenters objected to the proposed requirement that work-
positioning equipment be rigged with a maximum free fall of 0.6 meters
(2 feet) insofar as it would apply when employees are working above
equipment that could serve as an anchorage. (See, for example, Exs.
0201, 0230.) For instance, IBEW noted that an employee using work-
positioning equipment might be much more than 0.6 meters above a
potential attachment point, such as a neutral bolt (Ex. 0230). The
union claimed that, if the employee used this attachment point, the
free-fall distance would have to be more than 0.6 meters for the
employee to reach the work.
OSHA acknowledges these concerns, but believes they can be
eliminated by the use of portable devices. With portable devices,
employees will not have to rely on anchorages on poles or structures
because the employees would have anchorages that are part of the work-
positioning equipment. Thus, it would always be possible to rig the
equipment to accommodate a free fall of no more than 0.6 meters.
Many commenters opposed requiring portable devices to provide
anchorages for employees on poles, towers, and similar structures.
(See, for example, Exs. 0125, 0127, 0149, 0151, 0162, 0171, 0173, 0175,
0177, 0186, 0200, 0209, 0227.) Some of these commenters maintained that
these devices do not meet the strength requirements for anchorages.
(See, for example, Exs. 0177, 0227.) For instance, Mr. Thomas Taylor
with Consumers Energy commented that ``the specified portable devices
do not meet the specifications for anchorages in Subpart M and were
never designed to be used for that purpose'' (Ex. 0177). Several
commenters argued that these devices are not always effective, are
difficult or impossible to use in some circumstances, are unnecessary,
and could even increase the risk to employees. (See, for example, Exs.
0125, 0127, 0149, 0151, 0171, 0175, 0186, 0200.) For instance, Ms. Jill
Lowe of the Employers Electrical and Communication Safety Committee of
Washington and Oregon commented:
The use of an anchorage device [such as] the pole shark, would
not be an effective anchor when working on a structural member or
sitting on a cross arm. The device would only be effective when
climbing a pole without obstructions or working in a position on a
pole below a cross arm or structural member. It must also be
acknowledged that some of these devices could not physically be used
due to limited space available on the pole at the work position
(i.e.: Secondaries, crossarm braces, etc.) . . . .
More information and data would be required before mandating the
use of this type of equipment. For example, how many actual injuries
have been recorded in a fall where a worker is belted in on the
pole? Would this add weight or further encumber the worker when
climbing the pole? These types of devices could be effective in
severe ice conditions, but for day to day use, would not provide the
desired efficacies and would impede climbing, add to maneuvering
difficulties and could increase risk factor(s). [Ex. 0151]
Ms. Salud Layton of the Virginia, Maryland & Delaware Association of
Electric Cooperatives argued that these devices pose a greater hazard
because they increase ``the amount of time spent on the pole, the
complexity of the work performed on the pole, and the number of
opportunities to make mistakes while doing unnecessary jobs not related
to the original reason the pole was actually climbed'' (Ex. 0175).
Mr. Anthony Ahern with the Ohio Rural Electric Cooperatives
provided the following explanation for his argument that these devices
can be difficult to use and could potentially increase the risk to
employees:
Some of these devices, especially the pole-shark, are large and
very awkward to use. They are very difficult to maneuver into a
narrow space and greatly limit movement on the pole. It is next to
impossible for a lineman to turn around far enough with one of these
devices to be able to reach the end of a ten foot cross arm or a
davit arm or even work on a transformer bank mounted on a cluster
rack. If two or more workers are working in the same area on a pole,
these devices can really create a lot of interference. Also, quite
often a second safety is required to be used with these devices so
that the climber can transition past cables, cross arms or other
equipment on a pole. This means an extra snap hook in the D-rings
and increases the possibility of an accident because the lineman
grabs the wrong one. These devices are also much more difficult to
operate with rubber gloves on than a conventional safety strap. [Ex.
0186]
However, some commenters suggested that these types of devices
could be used as anchorages. (See, for example, Ex. 0199; Tr. 1338,
1357.) A video submitted to the record shows one of these devices
successfully supporting an employee who had fallen from a pole (Ex.
0492).
[[Page 20403]]
OSHA concludes that the concerns of commenters who argued that
portable anchorage equipment is difficult to use or poses increased
hazards are unwarranted. As noted earlier, some employers already
require 100-percent attachment. The testimony of Messrs. Marchessault
(of Workplace Safety Solutions) and Theis (of MYR Group) offer evidence
that Pole Sharks, Pole Chokers, and similar devices can be, and have
been, used successfully as anchorages (Tr. 576-579, 1338, 1357). The
videotape of one of these devices in use clearly demonstrates that the
particular device is reasonably light and not significantly more
difficult to use than the traditional positioning straps currently used
by power line workers (Ex. 0492). Some of these devices occupy about
the same space on a pole or structure as a positioning strap and,
therefore, should fit wherever those straps fit (id.). Evidence also
indicates that, with training, employees can use these devices
proficiently (Ex. 0199; Tr. 576-579).
Mr. Ahern's example of an employee using positioning equipment to
reach the end of a 3-meter (10-foot) crossarm supports the need for
employees to use an anchorage at the work location. The end of the
crossarm would be about 1.4 meters (4.6 feet) from the edge of the
pole. To perform such work, a 2-meter-tall (6.5-foot-tall) employee
would have to be in a nearly horizontal position to reach the end of
the arm. This position increases the likelihood of gaff cutout, because
the gaffs would be at an angle to the force applied by the employee's
weight, which would be applied in a vertical direction. A gaff is
designed to penetrate the wood when force is applied along its length.
When force is applied perpendicular to the length of the gaff, it can
twist the gaff out of the wood. In addition, to the extent it is
impossible to reach the end of the crossarm with some of these devices,
other methods of working from the pole can be used. For example, the
employee could work from a pole-mounted platform, which would both
enable the employee to reach further from the pole and provide an
anchorage for the fall protection equipment (269-Ex. 8-5). Thus, the
Agency concludes that there is greater need for an anchorage when work
is performed in such positions.
The examples of working on a crossarm or a structural member
provided by Ms. Lowe with the Employers Electrical and Communication
Safety Committee of Washington and Oregon are inapposite. As noted
earlier, work-positioning equipment is inappropriate for use in these
situations; such equipment may be used only on vertical structural
members. It is not clear why Pole Sharks, Pole Chokers, or similar
devices, which are designed to supplement or replace traditional
positioning straps, could not be used on vertical members in the same
way a traditional positioning strap can be used.
OSHA concludes that the accident information in the record
indicates that there is a need for employees to use an anchorage to
keep them from falling while they are at the work location (Exs. 0002,
0400). Two of the gaff cutout accidents included in Table 3 occurred
while an employee was at the work location. One commenter stated that
one of his company's eight fall accidents occurred while an employee
was at the work position (Ex. 0209). Although the total number of
accidents is not great, these accidents are easily preventable.
The final rule, in paragraph (b)(3)(iii)(C), already requires
employees to be protected while climbing. The same equipment that
protects an employee climbing a pole can serve as an anchorage and can
prevent him or her from falling while at the work location as well (Ex.
0492; Tr. 576-579). As a result, OSHA does not believe there will often
be problems finding or providing anchorage points for work-positioning
equipment that can satisfy the 0.6-meter maximum free-fall requirement.
The Agency notes that Consumers Energy incorrectly identified the
relevant strength requirements for anchorages used with work-
positioning equipment. Paragraph (b)(1)(i) of final Sec. 1926.954
applies Subpart M only to fall arrest equipment. Paragraph (b)(3)(v) of
final Sec. 1926.954, described later in this section of the preamble,
requires anchorages used with work-positioning equipment to be capable
of supporting at least twice the potential impact load of an employee's
fall, or 13.3 kilonewtons (3,000 pounds), whichever is greater. OSHA
concludes that it is feasible with available technology for portable
anchorage devices to meet the tensile-strength requirement in paragraph
(b)(3)(v) of the final rule. The materials, including straps, buckles,
rivets, snaphooks, and other hardware, that are, or could be, used in
anchorages also are used in positioning straps for work-positioning
equipment (Exs. 0055, 0492), which paragraph (b)(2)(vii)(C) of the
final rule requires to have greater tensile strength than required by
paragraph (b)(3)(v) of the final rule. In addition, Mr. Lee
Marchessault with Workplace Safety Solutions testified about the
experience of a line worker he had been training (Tr. 577-578). The
line worker, who had been using a portable anchorage device (the
BuckSqueeze) during the training exercise, experienced a gaff cutout,
but was not injured because the device successfully arrested the fall
(id.). The videotape Mr. Marchessault submitted for the record depicted
this equipment as successfully arresting the fall of the worker who had
been using it (Ex. 0492). Portable anchorage devices are designed to
arrest an employee's fall into work-positioning equipment; thus, the
devices almost certainly meet the strength requirements in ASTM F887-
04, which, as noted earlier, are equivalent to OSHA's strength
requirements for work-positioning equipment. In fact, the latest
edition of the consensus standard, ASTM F887-12\e1\, contains
equivalent strength requirements for what it calls ``wood pole fall
restriction devices.'' \151\ OSHA has included a note following
paragraph (b)(3)(v) of the final rule to indicate that wood-pole fall-
restriction devices meeting ASTM F887-12\e1\ are deemed to meet the
anchorage-strength requirement when they are used in accordance with
manufacturers' instructions.
---------------------------------------------------------------------------
\151\ Section 15.3.2 of ASTM F887-12\e1\ requires these devices,
when new, to have a breaking strength of 13.3 kilonewtons (3,000
pounds). Section 24 of that standard describes test procedures for
these devices to ensure that they will successfully arrest a fall.
---------------------------------------------------------------------------
For these reasons, paragraph (b)(3)(iv) in the final rule requires
work-positioning systems to be rigged so that an employee can free fall
no more than 0.6 meters (2 feet). OSHA is not including the proposed
exemption for situations in which no anchorage is available. In view of
the availability of wood-pole fall-restriction devices, OSHA expects
that in most, if not all, circumstances, anchorages will not only be
available, but will be built into work-positioning equipment to permit
compliance with this provision, as well as paragraph (b)(3)(iii)(C) of
the final rule. However, because the Agency believes that employers
will purchase equipment that complies with both paragraphs
(b)(3)(iii)(C) and (b)(3)(iv), OSHA is requiring compliance with both
of these paragraphs starting on April 1, 2015. This delay should
provide employers with sufficient time to evaluate, and then purchase,
compliant equipment.
Final paragraph (b)(3)(v), which is being adopted without
substantive change from the proposal, requires anchorages used with
work-positioning equipment to be capable of sustaining at least twice
the potential impact load of an employee's fall, or 13.3 kilonewtons
(3,000 pounds), whichever is greater.
[[Page 20404]]
This provision, which duplicates Sec. 1926.502(e)(2), will ensure that
an anchorage will not fail when needed to stop an employee's fall.
Comments on the technological feasibility of this provision are
addressed in the summary and explanation for paragraph (b)(3)(iv),
earlier in this section of the preamble.
Final paragraph (b)(3)(vi), which is being adopted without
substantive change from the proposal, provides that, unless a snaphook
is a locking type and designed specifically for the following
conditions, snaphooks on work-positioning equipment not be engaged to
any of the following:
(1) Webbing, rope, or wire rope;
(2) Other snaphooks;
(3) A D ring to which another snaphook or other connector is
attached;
(4) A horizontal lifeline; or
(5) Any object that is incompatibly shaped or dimensioned in
relation to the snaphook such that accidental disengagement could occur
should the connected object sufficiently depress the snaphook keeper to
allow release of the object.
This paragraph, which duplicates Sec. 1926.502(e)(8), prohibits
methods of attachment that are unsafe because of the potential for
accidental disengagement of the snaphooks during use.
6. Section 1926.955, Portable Ladders and Platforms
Final Sec. 1926.955 addresses portable ladders and platforms.
Paragraph (a) provides that requirements for portable ladders used in
work covered by Part 1926, Subpart V are contained in Part 1926,
Subpart X, except as noted in Sec. 1926.955(b). Proposed paragraph (a)
also provided that the requirements for fixed ladders in subpart D of
part 1910 (Sec. 1910.27) applied to fixed ladders used in electric
power transmission and distribution construction work. OSHA is
including proposed paragraph (a) in the final rule with one change--
deleting the second provision.
Fixed ladders used in electric power generation, transmission, and
distribution work are permanent ladders. They are the same ladders
irrespective of whether the work being performed on them is
construction work covered by subpart V or maintenance work covered by
Sec. 1910.269. In the preamble to the proposal, OSHA explained that
the Agency believed that the Part 1910, Subpart D standards should
apply to these ladders during construction, as well as during
maintenance work (70 FR 34855), but requested comments on whether the
proposed incorporation of the general industry standard for fixed
ladders was warranted, especially in light of the 1990 proposed
revision to Part 1910, Subpart D (55 FR 13360, Apr. 10, 1990). OSHA
recently reproposed the revision of that subpart (75 FR 28862, May 24,
2010).
A few commenters responded to this issue. (See, for example, Exs.
0162, 0212, 0227, 0230.) Southern Company was concerned about the
proposed incorporation of Subpart D, commenting:
We question the use of 1910.27 for fixed ladders since OSHA
proposed the revision of this standard over 15 years ago and there
has been no action to date. Due to the time that has elapsed since
OSHA published the proposed revisions to 1910 Subpart D and the
revisions that have been made to the national consensus standards
for all types of ladders, OSHA may wish to consider reopening the
rulemaking prior to proceeding with the revisions to Subpart D. We
recommend that OSHA not reference Subpart D as a part of the
revisions to Subpart V and 1910.269 until work on the revision to
Subpart D is completed. [Ex. 0212]
Southern Company also asked OSHA to explain ``why the provisions of
1910 Subpart D should be applied to fixed ladders instead of the fixed
ladder requirements of 1926.1053'' (id.). Southern Company asserted
that the construction standard contained requirements that are not
found in the general industry standard, but that contribute to employee
safety (id.).
EEI recommended that neither Sec. 1926.955(a) nor the
corresponding provision in the general industry standard, Sec.
1910.269(h)(1), incorporate part 1910, subpart D by reference until
OSHA finalizes revisions to part 1910, subpart D (Ex. 0227). EEI
asserted that there were discrepancies between the requirements for
fixed ladders in existing part 1910, subpart D, the 1990 proposed part
1910, subpart D, and the then-current ANSI standard for fixed ladders,
ANSI A14.3-2002, American National Standard for Ladders--Fixed--Safety
Requirements (id.). EEI also asserted that the existing general
industry standard contained outdated design requirements (id.).
OSHA accepts EEI's and Southern Company's recommendation not to
apply the requirements for fixed ladders in Sec. 1910.27 to fixed
ladders used in the construction of electric power transmission and
distribution installations, though not for the reasons these commenters
stated. OSHA believes that the use of fixed ladders in the construction
of transmission and distribution installations is not unique. As such,
the requirements that apply to fixed ladders in the construction of
electric power transmission and distribution installations should be
the same as the requirements that apply generally to construction work
(including, as Southern Company noted, the requirements contained in
Sec. 1926.1053).
Because OSHA is not including the cross-reference to subpart D for
fixed ladders in the final rule and because the remaining provisions in
Sec. 1926.955(a) apply only to portable ladders and platforms, OSHA is
revising the title of Sec. 1926.955 to ``Portable ladders and
platforms'' to more accurately reflect the contents of this section.
OSHA also accepts EEI's and Southern Company's recommendation not
to reference in final Sec. 1910.269(h) the part 1910, subpart D
provisions for fixed ladders because, as with final Sec. 1926.955,
Sec. 1910.269(h) in the final rule covers only portable ladders and
platforms. Therefore, OSHA is revising the title of Sec. 1910.269(h)
to ``Portable ladders and platforms'' and is revising the regulatory
text of final Sec. 1910.269(h)(1) to clarify that the paragraph
applies to portable ladders and platforms, not fixed ladders. These
changes make final Sec. 1910.269(h) consistent with final Sec.
1926.955.
MYR Group also had concerns about applying the general industry
standards to construction work. MYR Group maintained that contractors
would have little control over fixed ladders provided by host employers
(Ex. 0162).
The Agency notes that an employer whose employees are performing
the work must adhere to OSHA standards. If, for example, an electric
utility's fixed ladder does not comply with Part 1926, Subpart X, then
a contractor whose employees would be using that ladder must take
whatever measures are necessary to protect its employees and comply
with Part 1926, Subpart X. Such measures include enforcing any
contractual language requiring the utility to address any noncompliant
ladders, using other means of accessing the work area, such as portable
ladders or aerial lifts, and repairing or replacing the ladder.
IBEW recommended that OSHA consider the specifications for fixed
ladders in IEEE Std 1307, Standard for Fall Protection for Utility
Work, when finalizing the language for subpart V and Sec. 1910.269
(Ex. 0230).The union wrote:
[T]he committee responsible for developing the standard went
through great pains to research ladders, step bolts, and other
climbing devices commonly installed on electrical structures.
Lineman climbing boots and other equipment was looked at for the
purpose of establishing ladder and step
[[Page 20405]]
bolt criteria that would be compatible with the worker safety
equipment. [Ex. 0230]
OSHA rejects IBEW's recommendation to adopt requirements based on
IEEE Std 1307. Although that consensus standard contains requirements
for structures found in electric power generation, transmission, and
distribution work (for example, utility poles and towers), those
structures are not unique to the electric power industry; and the
Agency believes, therefore, that this rulemaking is not the proper
vehicle to regulate them. The same types of structures are found in
other industries, in particular, the telephone and cable-television
industries. Utility poles and towers are used to support telephone
lines, cable television lines, communications antennas, and other
equipment used by these industries. OSHA notes that its recently
proposed revision of part 1910, subpart D includes requirements for
fixed ladders on towers and for step bolts on towers and poles (see
proposed Sec. 1910.24, Step bolts and manhole steps; 75 FR 29136).
Paragraph (b) of the final rule establishes requirements for
special ladders and platforms used for electrical work. Because the
lattice structure of an electric power transmission tower and overhead
line conductors generally do not provide solid footing or upper support
for ladders, OSHA is exempting portable ladders used on structures or
conductors in conjunction with overhead line work from the general
provisions of Sec. 1926.1053(b)(5)(i) and (b)(12), which address
ladder support and the use of ladders near exposed electric equipment.
As noted in the preamble to the proposal, an example of a type of
ladder exempted from these provisions is a portable hook ladder used by
power line workers to work on overhead power lines (70 FR 34855).\152\
These ladders are hooked over the line or other support member and then
are lashed in place at both ends to keep them steady while employees
are working from them.
---------------------------------------------------------------------------
\152\ Existing Sec. 1926.1053(b)(12) provides that ``[l]adders
shall have nonconductive siderails if they are used where the
employee or the ladder could contact exposed energized electrical
equipment, except as provided in Sec. 1926.951(c)(1) of this
part.'' In this final rule, OSHA is replacing the reference to Sec.
1926.951(c)(1) with a reference to the corresponding provision in
the final rule, Sec. 1926.955(c), and to final Sec. 1926.955(b),
which exempts special ladders used for electrical work from the
requirement for nonconductive siderails.
---------------------------------------------------------------------------
Final paragraphs (b)(1) through (b)(4) and (c) provide employees
with protection that is similar to the protection afforded to employees
by Sec. 1926.1053(b)(5)(i) and (b)(12). These provisions require that
these special ladders and platforms be secured, specify the acceptable
loads and proper strength of this equipment, and provide that the
ladders be used only for the particular types of application for which
they are designed. These provisions thereby ensure that employees are
adequately protected when using the ladders covered by the final rule.
In the Sec. 1910.269 rulemaking, OSHA concluded that these alternative
criteria provide for the safe use of this special equipment, and the
Agency is extending the application of these alternative criteria to
work covered by Subpart V (59 FR 4375). It should be noted that the
requirements for portable ladders in final paragraphs (b)(1) through
(b)(4) apply in addition to requirements in Sec. 1926.1053 for
portable ladders. OSHA revised the language in the final rule to
clarify that the requirements in Sec. 1926.1053, except for paragraph
(b)(5)(i) and (b)(12), apply to portable ladders used on structures or
conductors in conjunction with overhead line work and that the
requirements in paragraphs (b)(1) through (b)(4) apply only to portable
ladders and platforms used in this manner.
Paragraph (b)(1) of final Sec. 1926.955 requires portable
platforms to be capable of supporting without failure at least 2.5
times the maximum intended load in the configurations in which they are
used. Paragraph (b)(1) in the proposed rule also applied this
requirement to portable ladders. However, Sec. 1926.1053(a)(1), which
also applies, already specifies the strength of portable ladders.
Having two standards with different strength requirements for portable
ladders would be confusing. Consequently, OSHA revised Sec.
1926.955(b)(1) in the final rule so that it covers only portable
platforms.
Paragraph (b)(2) of final Sec. 1926.955 prohibits portable ladders
and platforms from being loaded in excess of the working loads for
which they are designed. It should be noted that, with respect to
portable ladders, compliance with this provision constitutes compliance
with Sec. 1926.1053(b)(3).
Paragraph (b)(3) of final Sec. 1926.955 requires portable ladders
and platforms to be secured to prevent them from becoming accidentally
dislodged.\153\ Accordingly, with respect to portable ladders, OSHA
concludes that compliance with Sec. 1926.955(b)(3) constitutes
compliance with Sec. 1926.1053(b)(6), (b)(7), and (b)(8).\154\
---------------------------------------------------------------------------
\153\ It should be noted that, to meet paragraph (b)(3),
employers must ensure that portable ladders and platforms are always
secured when in use, regardless of the conditions of the surface on
which the ladder is placed. For example, when a conductor platform,
such as a cable cart, is suspended from a line conductor by a
trolley or hooks, the platform must be secured to the conductor so
that it cannot fall if the trolley or hooks become dislodged.
\154\ It should also be noted that Sec. 1926.1053(b)(1), which
requires that portable ladders be secured in certain situations,
applies additional requirements when portable ladders are used to
access an upper landing surface. Therefore, compliance with final
Sec. 1926.955(b)(3) does not constitute compliance with these
requirements.
---------------------------------------------------------------------------
Paragraph (b)(4) of final Sec. 1926.955 requires portable ladders
and platforms to be used only in applications for which they are
designed. It should be noted that, with respect to portable ladders,
compliance with this provision constitutes compliance with Sec.
1926.1053(b)(4).
Paragraph (c) prohibits the use of portable metal, and other
portable conductive, ladders near exposed energized lines or equipment.
This paragraph addresses the hazard to employees of contacting
energized lines and equipment with conductive ladders. However, as
noted in the preamble to the proposal, in specialized high-voltage
work, the use of nonconductive ladders could present a greater hazard
to employees than the use of conductive ladders (70 FR 34855-34856). In
some high-voltage work, voltage can be induced on conductive objects in
the work area. When the clearances between live parts operating at
differing voltages, and between the live parts and grounded surfaces,
are large enough that it is relatively easy to maintain the minimum
approach distances required by Sec. 1926.960(c)(1), electric shock
from induced voltage on objects in the vicinity of these high-voltage
lines can pose a greater hazard. Although these voltages do not
normally pose an electrocution hazard, the involuntary muscular
reactions caused by contacting objects at different voltages can lead
to falls. Using a conductive ladder in these situations can minimize
the voltage differences between objects within an employee's reach,
thereby reducing the hazard to the employee. Therefore, the final rule
permits a conductive ladder to be used if an employer can demonstrate
that the use of a nonconductive ladder would present a greater hazard
to employees.
7. Section 1926.956, Hand and Portable Power Equipment
Final Sec. 1926.956 addresses hand and portable power equipment.
The title of this section in the proposal was ``Hand and portable power
tools.'' OSHA revised the title to comport with the scope of the
requirements in this section, which address equipment generally and not
just tools. Paragraph
[[Page 20406]]
(a) of this section of the final rule provides that electric equipment
connected by cord and plug is covered by paragraph (b), portable and
vehicle-mounted generators used to supply cord- and plug-connected
equipment are governed by paragraph (c), and hydraulic and pneumatic
tools are covered by paragraph (d). OSHA took all of the requirements
in this section from existing Sec. 1910.269(i).
Electric equipment connected by cord and plug must satisfy the
requirements in paragraph (b). Proposed paragraph (b)(1) stated that
cord- and plug-connected equipment supplied by premises wiring is
covered by Subpart K of Part 1926. OSHA is not including this proposed
requirement in the final rule because, first, OSHA determined that the
language in proposed paragraph (b) improperly emphasized ``premises
wiring.'' The purpose of the proposed provision was to clarify that
equipment covered by Subpart K would continue to be covered by that
Subpart (70 FR 34856). However, OSHA derived the proposed provision
from the corresponding provision in existing Sec. 1910.269(i). That
provision was, in turn, derived from Sec. 1910.302(a)(1), which
specifies the scope of part 1910, subpart S, and provides that the
subpart's ``design safety standards for electric utilization of
systems'' apply to ``electrical installations and utilization equipment
installed or used within or on buildings, structures, and other
premises'' (that is, premises wiring). Section 1926.402, which
specifies the scope of Subpart K, does not use the term ``premises
wiring.'' Second, proposed Sec. 1926.956(b)(1), and its counterpart in
existing Sec. 1910.269(i)(2)(i), are unnecessary because these
provisions simply refer to requirements that already apply. Therefore,
to remove any ambiguity, the Agency is not including proposed Sec.
1926.956(b)(1) in the final rule and is removing existing Sec.
1910.269(i)(2)(i) and is replacing the reference in existing Sec.
1910.269(i)(2)(ii) (final Sec. 1910.269(i)(2)) to any cord- and plug-
connected equipment supplied by other than premises wiring with a
reference to cord- and plug-connected equipment not covered by Subpart
S.
Pursuant to proposed paragraph (b)(2), equipment not covered by
subpart K had to have the tool frame grounded, be double insulated, or
be supplied by an isolating transformer with an ungrounded secondary.
The proposed rule (and existing Sec. 1926.951(f)(2)(iii)) did not
specify any limit on the secondary voltage of the isolating
transformer. OSHA is promulgating this paragraph in the final rule
(final paragraph (b)(3)) with one substantive change--if an isolating
transformer with an ungrounded secondary is used to comply with this
provision, its secondary voltage is limited to 50 volts.
In the preamble to the proposed rule, OSHA noted the widespread
availability of double-insulated tools and requested comment on whether
the option permitting tools to be supplied through an isolating
transformer was still necessary (75 FR 34856). Several commenters
responded to this request. (See, for example, Exs. 0126, 0186, 0201,
0209, 0212, 0213, 0227, 0230.)
Most of these comments supported retaining the proposed option that
permits cord- and plug-connected equipment to be supplied by an
isolating transformer. (See, for example, Exs. 0201, 0209, 0212, 0213,
0227.) For instance, Duke Energy stated: ``OSHA should continue to
allow the third option of isolating transformers. While most
applications are covered by grounding or double insulating, there are
unique situations where neither of these is possible and an isolating
transformer may be necessary to protect employees'' (Ex. 0201). TVA
commented, without elaboration, that ``[d]uring plant outages there are
situations where the use of isolating transformers provides the best
employee safety'' (Ex. 0213). Southern Company relied on OSHA's
statement in the preamble to the proposal \155\ that using isolating
transformers is ``an effective means of protecting employees from
shock'' (Ex. 0212).
---------------------------------------------------------------------------
\155\ See 70 FR 34856.
---------------------------------------------------------------------------
Other commenters asserted that using isolating transformers was an
outdated form of protection. (See, for example, Exs. 0126, 0186, 0230.)
For instance, Mr. Anthony Ahern of Ohio Rural Electric Cooperatives
wrote:
Isolating transformers are not needed today. Almost all tools
today are either double insulated or equipped with a grounding (3
wire) cord and plug. OSHA already has rules which cover the use and
maintenance of these types of tools. Further, battery operated and
gas powered tools are becoming more and more common and hydraulic
tools are commonly used with bucket trucks. [Ex. 0186]
IBEW commented, ``Double insulated hand tools are the industry
standard. It would be difficult to find tools that are not double
insulated or the tool frame is not grounded'' (Ex. 0230). IBEW stated,
however, that isolating transformers continue to be an option ``[i]f
other types of tools continue to be used'' (id.).
OSHA determined that the proposed option permitting cord- and plug-
connected equipment to be supplied by an isolating transformer was
insufficiently protective and that this option will only provide
sufficient protection against ground faults when the isolation
transformer has an ungrounded secondary of no more than 50 volts. OSHA
is imposing the 50-volt limit on isolation transformers because,
although OSHA stated in the preamble to the proposal that each of the
three options (grounding, double insulation, and isolation) provided
protection from electric shock (70 FR 34856), OSHA recognized in other
standards the limited protection provided by isolating
transformers.\156\ If unlimited voltages are permitted with respect to
the isolating transformer option, employees working with cord- and
plug-connected equipment operating at higher voltages would be exposed
to a serious electric-shock hazard when a second ground fault occurs.
Even if equipment is supplied by an isolating transformer with an
ungrounded secondary, there will always be a path to ground for the
circuit conductors. This path will be caused by leakage or by
capacitive or inductive coupling. Depending on the location of this
path, one of the circuit conductors could have a voltage to ground as
high as the full circuit voltage. Thus, while the corresponding
electrical standards for general industry and construction at
Sec. Sec. 1910.304(g)(6)(vi) and (g)(6)(vii) and 1926.404(f)(7)(iv),
respectively, permit all three options, the standards (in Sec. Sec.
1910.304(g)(6)(vii)(A) and 1926.404(f)(7)(iv)(C)(6)) also limit the
secondary voltage on the isolating transformer to 50 volts or less.
Fifty volts or less is widely recognized as a generally safe voltage.
(See, for example, Exs. 0076, 0077, 0532.)
---------------------------------------------------------------------------
\156\ OSHA notes that TVA did not address the safety of using an
isolating transformer with a secondary voltage of more than 50 volts
during a plant outage. However, pursuant to the final rule, if TVA
uses such a transformer during a plant outage or otherwise, that
transformer must have a secondary voltage of not more than 50 volts.
---------------------------------------------------------------------------
Paragraph (c) of final Sec. 1926.956 requires portable and
vehicle-mounted generators used to supply cord- and plug-connected
equipment covered by paragraph (b) to meet several requirements. Under
paragraph (c)(1), the generator may only supply equipment on the
generator or the vehicle (for example, lights mounted on the generator
or vehicle) and cord- and plug-connected equipment through receptacles
mounted on the generator or the vehicle. Paragraph (c)(2) provides that
non-current-carrying metal parts of
[[Page 20407]]
equipment, and the equipment grounding conductor terminals of the
receptacles, must be bonded to the generator frame. Paragraph (c)(3)
requires that the frame of vehicle-mounted generators be bonded to the
vehicle frame. Finally, paragraph (c)(4) requires the neutral conductor
to be bonded to the generator frame. The final rule clarifies that
these requirements apply only when Subpart K does not apply, as
explained in the discussion of Sec. 1926.956(b), earlier in this
section of the preamble. The requirements in this paragraph are similar
to the corresponding Subpart K requirements, which are contained in
Sec. 1926.404(f)(3).
Final paragraph (d), which is being adopted without substantive
change from the proposal, applies to pneumatic and hydraulic tools.
Paragraph (d)(1) of Sec. 1926.302 requires the fluids used in
hydraulic-powered tools to be fire resistant. As explained in the
preamble to the proposed rule, insulating hydraulic fluids are not
inherently fire resistant, and additives that could make them fire
resistant generally make the hydraulic fluid unsuitable for use as
insulation (70 FR 34856). Because of these characteristics and because
hydraulic fluids must be insulating to protect employees performing
power transmission and distribution work, existing Sec. 1926.950(i)
exempts insulating hydraulic fluids from Sec. 1926.302(d)(1).
OSHA proposed to continue this exemption in Sec. 1926.956(d)(1),
but was concerned by several accidents described in the record that
occurred when insulating hydraulic fluid ignited and burned employees
(Ex. 0002). The Agency requested information on whether fire-resistant
insulating hydraulic fluids were available or were being developed.
OSHA did not receive any information about the availability or
progress with the development of fire-resistant insulating hydraulic
fluid; consequently, OSHA is including the existing exemption for
insulating hydraulic fluids in the final rule. The Agency believes that
the most serious hazard faced by an employee performing work covered by
subpart V is electric shock. The Agency also reviewed the accidents in
the record (such as Exs. 0002, 0003, 0004, and 0400) and concluded
that, although insulating hydraulic fluid poses a substantial risk of
igniting and burning workers, the risk of electric shock with
uninsulated hydraulic equipment poses a greater risk of harm. OSHA
encourages employers and manufacturers to develop insulating fluid that
also is fire-resistant and will reexamine this issue if such fluids
become available.
Final paragraph (d)(2) provides that safe operating pressures may
not be exceeded. This requirement protects employees from the harmful
effects of tool failure. If hazardous defects are present, no operating
pressure would be safe, and the tools could not be used. In the absence
of defects, the maximum rated operating pressure (which may be
specified by the manufacturer or by hydraulics handbooks) is the
maximum safe pressure. OSHA included a note to this effect in the final
rule.
If a pneumatic or hydraulic tool is used where it may contact
exposed energized parts, the tool must be designed and maintained for
such use under final paragraph (d)(3). In addition, under paragraph
(d)(4), hydraulic systems for tools that may contact exposed live parts
during use must provide protection against loss of insulating value,
for the voltage involved, due to the formation of a partial vacuum in
the hydraulic line. Under paragraph (d)(5), a pneumatic tool used on
energized electric lines or equipment or used where it may contact
exposed live parts must provide protection against the accumulation of
moisture in the air supply. These three requirements protect employees
from electric shock by restricting current flow through hoses.
OSHA included a note following paragraph (d)(4) of the final rule
addressing the use of hydraulic lines that do not have check
valves.\157\ If such lines are located in such a manner that the
highest point on the hydraulic system is more than 10.7 meters (35
feet) above the oil reservoir, a partial vacuum can form inside the
line. A partial vacuum can cause a loss of insulating value, possibly
resulting in an electrical fault and consequent hydraulic system
failure while an employee is working on a power line. During the
rulemaking on the 1994 Sec. 1910.269 final rule, IBEW reported two
accidents that resulted from such an occurrence (269-DC Tr. 613).
Therefore, OSHA inserted the note when the Agency adopted existing
Sec. 1910.269(i)(4)(iii), which is mirrored in final Sec.
1926.956(d)(4).\158\
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\157\ A check valve blocks reverse flow of the hydraulic fluid
and prevents the formation of a partial vacuum.
\158\ OSHA notes that whether a partial vacuum will result in
the loss of insulating value that triggers actions to prevent the
formation of a partial vacuum depends on the voltage involved.
---------------------------------------------------------------------------
Final paragraphs (d)(6) and (d)(7) provide work-practice
requirements to protect employees from the accidental release of
pressure and from the injection of hydraulic oil (which is under high
pressure) through the skin and into the body. The first of these two
provisions requires the release of pressure before connections in the
lines are broken, unless quick-acting, self-closing connectors are
used. In the case of hydraulic tools, the spraying hydraulic fluid
itself, which is flammable, poses additional hazards. Final paragraph
(d)(7) requires employers to ensure that employees do not use any part
of their bodies, such as a finger, to try to locate or stop a hydraulic
leak. This provision in the final rule has been reworded to clarify
that the employer has responsibility for compliance.
Final paragraph (d)(8) provides that hoses not be kinked. Kinks in
hydraulic and pneumatic hoses can lead to premature failure of the hose
and to sudden loss of pressure. If this loss of pressure occurs while
the employee is using the tool, an accident could result in harm to
employees. For example, a hydraulic or pneumatic tool supporting a load
could drop the load onto an employee on a sudden loss of pressure.
NIOSH suggested that OSHA ``consider an additional safeguard
against the unintentional release of hydraulic oil--the use of hoses
that are color coded by the [operating pressure] they can withstand,
thus reducing the hazard of skin absorption or fire'' (Ex. 0130). NIOSH
did not submit any evidence that employers are using hoses of improper
rating on hydraulic equipment. Consequently, the Agency is not adopting
a requirement to color code hydraulic hoses according to safe operating
pressure. However, NIOSH submitted evidence that an employer performing
maintenance on an insulating hydraulic tool improperly replaced a
nonconductive hose with a hose that was conductive because of its metal
reinforcement (Ex. 0139). Although OSHA is not adopting a color-coding
requirement in the final rule, the Agency advises manufacturers to
clearly distinguish between conductive and nonconductive hoses.
Section 1926.957, Live-Line Tools
Final Sec. 1926.957 is equivalent to existing Sec. 1910.269(j)
and contains requirements for live-line tools (some of which are
commonly called ``hot sticks''). This type of tool is used by qualified
employees to handle energized conductors. The tool insulates the
employee from the energized line. For example, a wire tong, which is a
slender insulated pole with a clamp on one end, is used to hold a
conductor at a distance while work is being performed. Common types of
live-line tools include
[[Page 20408]]
wire tongs, wire-tong supports, tension links, and switch, fuse, and
tie sticks.
Mr. Leo Muckerheide of Safety Consulting Services was concerned
that proposed Sec. 1926.957 did not address all types of live-line
tools, stating:
There is no definition given for a live-line tool except in the
preamble. It states that such a tool is used to handle energized
conductors and then gives some examples. There are other work
practices, such as installing personal protective grounds, checking
for voltage, pulling fuses or cutouts, removing or installing pins
on suspension insulators, removing or installing jumpers, etc.,
where an insulated tool (switch/fuse/hot stick) is utilized. The
insulating characteristics of these insulated tools (switch/fuse/hot
stick) is critical to the accomplishment of such activities without
injury to the worker. Any insulated tool (switch/fuse/hot stick)
that is used on an energized circuit or a normally energized circuit
in a manner that places a part of the tool inside the minimum
approach distance . . . should be considered a live-line tool. The
worker is depending on the insulating characteristics of the tool
for protection. [Ex. 0180]
He recommended that OSHA expand this section to include these other
insulated tools (id.).
OSHA notes that the lists of live-line tools provided here and in
the preamble to the proposal (70 FR 34853) are not exhaustive. Also,
OSHA added some of Mr. Muckerheide's examples to the list in the first
paragraph of the summary and explanation for final Sec. 1926.957.
Final Sec. 1926.957, and its general industry counterpart, final Sec.
1910.269(j), cover any tool that is designed to contact an energized
part and insulate the worker from that part. IEEE Std 516-2003, IEEE
Guide for Maintenance Methods on Energized Power Lines, defines
``insulating tool or device'' as a tool or device ``designed primarily
to provide insulation from an energized part or conductor'' (Ex.
0041).\159\ This definition is consistent with OSHA's use of the term
``live-line tool.'' The Agency believes that the term is well
understood by the regulated community and that the guidance provided in
this preamble makes the Agency's meaning of the term clear. Therefore,
OSHA concludes that it is not necessary to define ``live-line tool'' in
the final rule.
---------------------------------------------------------------------------
\159\ IEEE Std 516-2009 contains the same definition (Ex. 0532).
---------------------------------------------------------------------------
Paragraph (a), which is being adopted without change from the
proposal, requires live-line tool rods, tubes, and poles to be designed
and constructed to withstand 328,100 volts per meter (100,000 volts per
foot) for 5 minutes if made of fiberglass-reinforced plastic (FRP),
246,100 volts per meter (75,000 volts per foot) for 3 minutes if made
of wood, or other tests that the employer can demonstrate are
equivalent. The voltage per unit length varies with the type of
material because different insulating materials are capable of
withstanding different voltages over equal lengths. For example, a
higher design standard for wood would cause most wood to fail to meet
the specification, while a lower design specification would allow
substandard products into service. Since the withstand voltages in
final paragraph (a) are consistent with the withstand voltages in
existing Sec. 1910.269(j)(1) and ASTM F711-02 (2007), Standard
Specification for Fiberglass-Reinforced Plastic (FRP) Rod and Tube Used
in Live-Line Tools, OSHA expects that tools currently in use in the
industry will continue to be acceptable. A note in the final regulatory
text provides that tools that meet ASTM F711-02 (2007) will be deemed
to comply with paragraph (a)(1) of final Sec. 1926.957. Together with
the minimum approach distances in Sec. 1926.960(c)(1), final paragraph
(a) of Sec. 1926.957 protects employees from electric shock when they
are using these tools.
Mr. Frank Owen Brockman with Farmers Rural Electric Cooperative
Corporation recommended that the standard not contain provisions for
live-line tools made of wood (Ex. 0173). He maintained that these tools
are outdated and should no longer be in service (id.).
OSHA believes that wood live-line tools likely are no longer in
service and are no longer being manufactured. However, the Agency has
no evidence in the record that there are no wood live-line tools
currently in service. As long as they meet the requirements in final
Sec. 1926.957, they can effectively protect employees from electric
shock. Therefore, OSHA is including in the final rule without change
the proposed requirements for live-line tools made of wood.
Paragraph (b) addresses the condition of tools. The requirements in
this paragraph duplicate the requirements in existing Sec.
1910.269(j)(2) and will ensure that live-line tools remain in a safe
condition after they are put into service. Paragraph (b)(1), which is
being adopted without change from the proposal, requires live-line
tools to be wiped clean and visually inspected for defects before each
day's use. Wiping the tool removes surface contamination that could
lower the insulating value of the tool. Inspecting the tool will
identify any obvious defects that could also adversely affect the
insulating value of the tool.
Paragraph (b)(2), which is being adopted without change from the
proposal, provides that a tool be removed from service if any
contamination or defect that could adversely affect its insulating
qualities or mechanical integrity is present after the tool is wiped
clean. This paragraph protects employees from the failure of live-line
tools during use. Tools removed from service must be examined and
tested under final paragraph (b)(3) before being returned to service.
During the rulemaking on existing Sec. 1910.269, OSHA found that,
while there was no evidence in the record of any injuries related to
the failure of a hot stick, evidence did indicate that these tools have
failed in use (without injury to employees) and that employees depend
on their insulating value while using them to handle energized
conductors (59 FR 4378). The Agency believes that live-line tools are
not typically used to provide protection for employees in the rain
(when work is normally suspended), which probably accounts for the lack
of injuries in the record.\160\ However, live-line tools might be used
under wet conditions, in which case it is necessary to ensure that
these tools will retain their insulating qualities when they are wet.
In addition, employee safety is dependent on the insulating integrity
of the tool--failure of a live-line tool would almost certainly lead to
serious injury or death whenever the tool is the only insulating
barrier between the employee and a live part. Therefore, OSHA is
adopting rules on the periodic examination and testing of live-line
tools to ensure that the live-line tools employees use are safe.
---------------------------------------------------------------------------
\160\ A contaminated tool will fail more easily when wet than
when dry (Ex. 0532). Tools are supposed to be wiped before use, in
part to remove moisture.
---------------------------------------------------------------------------
Although visual inspection can detect the presence of hazardous
defects and contamination, the Agency concluded, on the basis of the
1994 rulemaking record for existing Sec. 1910.269, that the daily
inspections required by final paragraph (b)(1) might not detect all
defects and contamination (59 FR 4378). Referring to live-line tools
that had failed in use, a Georgia Power Company study submitted to that
1994 rulemaking record stated: ``Under visual inspection all the sticks
appeared to be relatively clean with no apparent surface
irregularities'' (269-Ex. 60). These tools passed a dry voltage test,
but failed a wet voltage test.\161\ While the study
[[Page 20409]]
further noted that the surface luster on the sticks was reduced,
apparently the normal visual inspection alone did not detect the
defects that caused those tools to fail.
---------------------------------------------------------------------------
\161\ A so-called ``dry test'' of a live-line tool is an
electrical test performed on the tool after it is stored under
ambient, low-humidity, test conditions for 24 hours. A so-called
``wet test'' is an electrical test performed on the tool after the
tool is placed in a high-humidity (at least 93-percent humidity)
chamber for 168 hours. After conditioning and before testing, the
tool is wiped with a dry cloth. Thus, the outside of the tool is dry
during both tests.
---------------------------------------------------------------------------
To address these concerns, OSHA is adopting requirements in
paragraph (b)(3) for the thorough examination, cleaning, repair, and
testing of live-line tools on a periodic basis. These provisions are
adopted in the final rule without substantive change from the proposal.
The tools must undergo this process on a 2-year cycle and whenever the
tools are removed from service on the basis of the daily
inspection.\162\
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\162\ When an employer removes a tool from service under final
paragraph (b)(2) and inspects and tests it under final paragraph
(b)(3), the 2-year cycle begins again on the date of the test.
---------------------------------------------------------------------------
The final rule first requires a thorough examination of the live-
line tool for defects (paragraph (b)(3)(i)). After the examination, the
tool must be cleaned and waxed if no defects or contamination are
found; if a defect or contamination that could adversely affect the
insulating qualities or mechanical integrity of the live-line tool is
found during the examination, the tool must be repaired and refinished
or permanently removed from service as specified by final paragraph
(b)(3)(ii). In addition, under final paragraph (b)(3)(iii), a tool must
be tested: (1) After it has been repaired or refinished, regardless of
its composition; or (2) after an examination is conducted in accordance
with final paragraph (b)(3)(i) that results in no repair or refinishing
being performed (although no testing is required if the tool is made of
FRP rod or foam-filled FRP tube and the employer can demonstrate that
the tool has no defects that could cause it to fail in use).
In accordance with final paragraph (b)(3)(iv), the test method used
must be designed to verify the tool's integrity along its full working
length and, if the tool is made of FRP, its integrity under wet
conditions. The performance criteria specified by final paragraph (a)
are ``design standards'' that must be met by the manufacturer. The test
voltages and test duration used during the manufacturing process are
not appropriate for periodic retesting of the hot sticks because live-
line tools may sustain damage during such tests. Accordingly, the in-
service tests required by final paragraph (b)(3)(v) are designed to
assure as much employee protection as possible without damaging the
tools. For tools with both hollow and foam-filled sections, the filled
section is typically considered to constitute the insulating portion of
the tool, which, for the purposes of final paragraph (b)(3)(iv), is the
working length of the tool.
Under final paragraph (b)(3)(v), the test voltages must be 246,100
volts per meter (75,000 volts per foot) for fiberglass tools or 164,000
volts per meter (50,000 volts per foot) for wood tools, and, in both
cases, the voltage must be applied for 1 minute. Other tests are
permitted if the employer can demonstrate that they provide equivalent
employee protection.
A note to paragraph (b) of the final rule states that guidelines
for the inspection, care, and testing of live-line tools are specified
in IEEE Std 516-2009.
Mr. Stephen Frost with Mid-Columbia Utilities Safety Alliance
commented that the IEEE standard does not contain test criteria for FRP
tools with hollow sections, but supported OSHA's proposal to adopt the
same language as existing Sec. 1910.269 (Ex. 0184).
OSHA reviewed the test procedures in IEEE Std 516-2009 and found
that they do address hollow, as well as foam-filled, live-line tools.
The Agency believes that these tests can be used by the employer as
appropriate for the different sections of multiple-section tools.
Mr. Leo Muckerheide of Safety Consulting Services commented that
existing Sec. 1910.269(j)(2)(iii) references a 1994 edition of the
2003 IEEE standard that OSHA referenced in the note to proposed
paragraph (b). He also noted that the ``wet'' test procedure in an ASTM
standard differs from the one in the IEEE standard. Mr. Muckerheide
explained:
[Paragraph (j)(2)(iii)(D) of existing Sec. 1910.269 and
proposed Sec. 1926.957(b)(3)(iv)] require the integrity testing of
fiberglass-reinforced plastic tools under ``wet conditions'' but it
does not define ``wet conditions''. The note for paragraph
1926.957(b)(3)(iv) refers to IEEE Std 516-2003 while the note for
1910.269(j)(2)(iii)(D) refers to IEEE Std 978-1984. IEEE Std 978-
1984 is no longer supported by IEEE. There is also an ASTM standard,
F711-02, that establishes specifications for live-line tools. Both
have a test protocol for ``wet conditions''. However, they are not
identical. One specifies a 7 day 93% humidity test and the other a
fine mist of distilled water. [Ex. 0180]
He recommended that both Sec. 1910.269 and subpart V require testing
under wet conditions to conform to the ``current version of IEEE Std
516.''
OSHA notes that the test procedure and criteria in ASTM F711 are
design or acceptance tests for new live-line tools, while the tests in
the IEEE standard are in-service tests. As noted earlier, design and
acceptance tests generally are more severe than in-service tests and
can damage tools if repeated on a regular basis. A tool in new
condition should perform at an optimal level. Once a tool has been in
service for a while, it will typically exhibit reduced performance
because the tool deteriorates as it is handled--it develops microscopic
scratches and becomes contaminated with creosote and other substances.
To account for this deterioration, in-service testing frequently uses
different test procedures or test criteria, or both. In the final
standard, the Agency provides employers flexibility in adopting test
procedures and criteria. Thus, test procedures and criteria are
acceptable as long as they meet the performance requirements of the
standard, that is, they ``verify the tool's integrity along its entire
working length and, if the tool is made of fiberglass-reinforced
plastic, its integrity under wet conditions.'' As explained in detail
under the summary and explanation for final Sec. 1926.97, earlier in
this section of the preamble, OSHA is adopting performance requirements
rather than incorporating consensus standards by reference for a number
of reasons, including allowing greater compliance flexibility and
reducing the need to update the OSHA standards as frequently.
As explained in the summary and explanation for Appendix G, later
in this section of the preamble, OSHA is updating the consensus
standards specified in nonmandatory references throughout final Sec.
1910.269 and final subpart V. In this case, the note to final Sec.
1910.269(j)(2) includes an updated reference to IEEE Std 516-2009 to
match the corresponding note to final Sec. 1926.957(b). (See the
summary and explanation of Sec. 1926.97, earlier in this preamble, for
a discussion of OSHA's approach regarding future updates of the
consensus standards referenced in this final rule.)
Section 1926.958, Materials Handling and Storage
Final Sec. 1926.958 is equivalent to existing Sec. 1910.269(k)
and contains requirements for materials handling and storage. Final
paragraph (a) clarifies that material-handling and material-storage
requirements in Part 1926, including those in Subparts N and CC, apply.
Proposed paragraph (a) referenced only Subpart N.\163\ However, OSHA
recently
[[Page 20410]]
revised its cranes and derricks standard, former Sec. 1926.550, which
was in subpart N when OSHA published the proposed rule for subpart V.
The recently published cranes and derricks final rule moved the
requirements for cranes and derricks into a new subpart, subpart CC of
part 1926 (75 FR 47906, Aug. 9, 2010).\164\ Consequently, the Agency is
including a reference to this new subpart in final Sec. 1926.958(a).
Work performed under subpart V is exempt from certain requirements in
subpart CC. For example, Sec. 1926.1408(b)(5) exempts cranes and
derricks used in subpart V work from Sec. 1926.1408(b)(4), which
requires employers to adopt one of several encroachment-prevention
measures for certain work near overhead power lines. Any exemptions in
subpart CC for subpart V work continue to apply; those exemptions are
not affected by this final rule.
---------------------------------------------------------------------------
\163\ When subpart V was originally promulgated in 1972, that
final rule also added a standard for aerial lifts to subpart N. That
aerial lift standard, which originally appeared at Sec. 1926.556,
eventually was redesignated as Sec. 1926.453, in subpart L. It
should be noted that, except for Sec. 1926.453(b)(2)(v), the aerial
lift standard still applies to work covered by subpart V even though
it is not referenced in final Sec. 1926.958 or final Sec.
1926.959. (See Sec. 1926.950(a)(2).) See, also, the summary and
explanation for final Sec. 1926.954(b)(3)(iii) for a discussion of
why the fall protection requirement in Sec. 1926.453(b)(2)(v) does
not apply to work covered by Subpart V.
\164\ Subpart CC applies to power-operated equipment, when used
in construction, that can hoist, lower, and horizontally move a
suspended load. The discussion of Subpart CC in the preamble to the
Subpart V final rule refers to this equipment as ``cranes and
derricks.''
---------------------------------------------------------------------------
It should be noted that Subparts H and O of OSHA's construction
standards also contain requirements pertaining to material handling and
storage. For example, Sec. 1926.602 covers material-handling
equipment. These provisions continue to apply even though they are not
specifically mentioned in final Sec. 1926.958(a). (See final Sec.
1926.950(a)(2).) To make this clear in the final rule, OSHA reworded
Sec. 1926.958(a) in the final rule to require material handling and
storage to ``comply with applicable material-handling and material-
storage requirements in this part, including those in subparts N and CC
of this part.''
Paragraph (b) addresses the storage of materials in the vicinity of
energized lines and equipment. Paragraph (b)(1), which is being adopted
without substantive change from the proposal, contains requirements for
areas to which access is not restricted to qualified employees only. As
a general rule, the standard does not permit materials or equipment to
be stored in such areas within 3.05 meters (10 feet) of energized lines
or exposed parts of equipment. This clearance distance must be
increased by 0.10 meters (4 inches) for every 10 kilovolts over 50
kilovolts. The distance also must be increased to account for the
maximum sag and side swing of any conductor and to account for the
height and movement of material-handling equipment. Maintaining these
clearances protects unqualified employees from contacting energized
lines or equipment with materials being handled. Storing materials at
the required distances also will facilitate compliance with provisions
elsewhere in the construction standards that require material-handling
equipment to maintain specific distances from energized lines and
equipment, such as Sec. 1926.600(a)(6).\165\
---------------------------------------------------------------------------
\165\ OSHA's revised standard for cranes and derricks at subpart
CC requires minimum clearance distances for cranes and derricks,
which, under certain conditions, are greater than the distances
specified by final Sec. 1926.958(b)(1). Therefore, employers
covered by subpart V must be knowledgeable about these requirements
when they store materials that are lifted by equipment covered under
subpart CC and may need to adjust the clearance distances for
storing materials away from energized lines and equipment
accordingly. (For work covered by subpart V, compliance with final
Sec. 1926.959 is deemed compliance with the relevant requirements
in subpart CC (per Sec. 1926.1400(g)). However, employers must
comply with subpart CC clearance distances for work performed by
unqualified employees because subpart V does not contain electrical
safety-related work practices for those workers. See final Sec.
1926.950(a)(1)(ii).)
---------------------------------------------------------------------------
The work practices unqualified workers must use in handling
material stored near energized lines, including in areas addressed by
final Sec. 1926.958(b)(1), are addressed elsewhere in Part 1926,
including subparts K and CC of part 1926. The general approach taken in
this revision of subpart V is to provide safety-related work practices
for qualified employees to follow when they are performing electric
power transmission and distribution work, including work in areas
addressed by final Sec. 1926.958(b)(1). (See the summary and
explanation for final Sec. 1926.950(a)(1)(ii).)
Mr. Kenneth Brubaker was concerned that unqualified employees
storing materials near energized lines or equipment could not determine
the relevant voltage and recommended specifying clearance distances
that did not require calculations based on voltage (Exs. 0099, 0100).
OSHA is not adopting Mr. Brubaker's recommendation. As noted under
the summary and explanation for final Sec. 1926.950(a)(1)(ii), subpart
V does not apply to electrical safety-related work practices for
unqualified employees. Paragraph (b)(1) of final Sec. 1926.958
specifies minimum clearance distances between energized lines or
exposed energized parts and stored material or equipment. The
electrical safety-related work practices used by unqualified employees
handling the stored material or equipment are addressed in subparts of
part 1926 other than subpart V. In any event, the employer is
responsible for determining where to store material and equipment so as
to comply with final Sec. 1926.958(b)(1), which addresses Mr.
Brubaker's concern that unqualified employees will be determining these
distances.
Paragraph (b)(2), which is being adopted without substantive change
from the proposal, governs the storage of materials in areas restricted
to qualified employees. If the materials are stored where only
qualified workers have access to them, the materials may be safely
stored closer to the energized parts than 3.05 meters (10 feet),
provided that the employees have sufficient room to perform their work.
Therefore, to ensure that enough room is available, paragraph (b)(2)
prohibits material from being stored in the working space around
energized lines or equipment. A note to this paragraph clarifies that
requirements for the size of the working space are contained in Sec.
1926.966(b). (See the discussion of final Sec. 1926.966(b) later in
this preamble for an explanation of requirements for access and working
space.)
Working space under this provision is the clear space that must be
provided around the equipment to enable qualified employees to work on
the equipment. The minimum working space specifies the minimum distance
an obstruction can be from the equipment. For example, if a switchboard
is installed in a cabinet that an employee will enter, the inside walls
of the cabinet must provide sufficient minimum working space to enable
the employee to work safely within the cabinet.
The minimum approach distance that must be maintained from a live
part is the minimum dimension of the space around the equipment that a
qualified employee is not permitted to enter, except under specified
conditions. Note that the minimum approach distance a qualified
employee must maintain from an energized part (covered in final Sec.
1926.960(c)(1)) is smaller than the working space that is required to
be provided around the part. Accordingly, the employee must enter the
working space and still maintain the minimum approach distance unless
one of the exceptions specified in Sec. 1926.960(c)(1) applies.
Employers must ensure that materials are stored outside the working
space so that employees can quickly
[[Page 20411]]
escape from the space if necessary. In addition, sufficient room must
be available in the working space to allow employees to move without
violating the minimum approach distance.
Section 1926.959, Mechanical Equipment
Requirements for mechanical equipment are contained in Sec.
1926.959. Paragraph (a) sets general requirements for mechanical
equipment used in the construction of electric power transmission or
distribution lines and equipment. Paragraph (a)(1) provides that
mechanical equipment must be operated in accordance with applicable
requirements in part 1926, including subparts N, O, and CC, except for
one requirement pertaining to the operation of mechanical equipment
near energized power lines at Sec. 1926.600(a)(6), which does not
apply to operations performed by qualified employees. Accordingly,
Sec. 1926.600(a)(6) continues to apply to operations performed by
unqualified employees. Final subpart V contains requirements for the
operation of mechanical equipment by qualified employees near energized
power lines and equipment. While the final rule allows qualified
employees to operate equipment closer to energized lines and equipment
than permitted for unqualified employees by Sec. 1926.600(a)(6), the
final rule also contains the relevant safeguards for protecting these
employees. These safeguards include special training for qualified
employees (see Sec. 1926.950(b)(2)) and the use of special safety
procedures for operations involving mechanical equipment (see Sec.
1926.959(d)). Therefore, OSHA believes that the final rule will provide
more appropriate protection for qualified electric power transmission
and distribution workers than Sec. 1926.600(a)(6). OSHA revised the
language of final Sec. 1926.959(a)(1) from the proposal to clarify
this point and to be more consistent with final Sec. 1926.958(a).
OSHA proposed to exempt subpart V operations performed by qualified
employees from Sec. 1926.550(a)(15) in subpart N, which specified
minimum approach distances for cranes and derricks. As noted earlier,
however, after OSHA published proposed subpart V, the Agency revised
its standard for cranes and derricks. The revised requirements for
cranes and derricks were relocated to subpart CC. In the cranes and
derricks rulemaking, OSHA concluded that the provisions for operating
cranes and derricks near overhead power lines in subpart CC were
reasonable and appropriate and were more protective of employees than
comparable provisions in existing subpart V. However, the Agency also
concluded that existing Sec. 1910.269(p) was just as protective of
employees as the requirements for operating cranes and derricks near
power lines adopted in subpart CC. (See 75 FR 47921, 47930, 47965-
47966.) Accordingly, OSHA deemed compliance with existing Sec.
1910.269(p) as compliance with Sec. Sec. 1926.1407 through 1926.1411.
(See Sec. 1926.1400(g).) The exemptions for subpart V work specified
in subpart CC (or elsewhere in part 1926) continue to apply; however,
as explained later in this section of the preamble, the Agency revised
several provisions in subpart CC to incorporate changes to subpart V in
this final rule.
Paragraph (a)(2) of final Sec. 1926.959 requires that the critical
safety components of mechanical elevating and rotating equipment
receive a thorough visual inspection before use on each shift. Although
the inspection must be thorough, it is not necessary to disassemble the
equipment. The note following this paragraph describes what equipment
parts OSHA considers to be critical safety components, that is, any
part for which failure would result in a free fall or free rotation of
the boom. These parts are critical to safety because failure would
immediately pose serious hazards to employees, as can be seen in
several aerial-lift accidents in the record (Ex. 0004 \166\). This
provision is adopted as proposed.
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\166\ See, for example, the seven accidents described at http://www.osha.gov/pls/imis/accidentsearch.accident_detail?id=951145&id=200200137&id=928168&id=908343&id=837740&id=14244818&id=564765.
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Paragraph (a)(3), which is being adopted without substantive change
from the proposal, prohibits the operator of an electric line truck
from leaving his or her position at the controls while a load is
suspended, unless the employer can demonstrate that no employee,
including the operator, would be endangered if the operator left his or
her position. This provision ensures that the operator will be at the
controls if an emergency arises that necessitates moving the suspended
load. For example, due to wind or unstable soil, the equipment might
start to tip over. Having the operator at the controls ensures that
corrective action can be taken quickly enough to prevent an accident.
Paragraph (b) sets requirements for outriggers. As proposed,
paragraph (b)(1) would have required that mobile equipment \167\
provided with outriggers be operated with the outriggers extended and
firmly set ``as necessary for the stability of the specific
configuration of the equipment.'' The manufacturer normally provides
limits for various configurations to ensure the stability of the
equipment, but these limits can also be derived through engineering
analysis.
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\167\ Paragraphs (p)(1)(ii) and (p)(2) of existing Sec.
1910.269 use the term ``vehicular equipment,'' which is not defined
in existing Sec. 1910.269(x). Existing paragraph (p)(1)(ii)
requires reverse-signal alarms under certain conditions. This
paragraph ``is based on existing Sec. Sec. 1926.601(b)(4) and
1926.602(a)(9)(ii)'' (59 FR 4399). Existing Sec. 1926.601(b)(4)
contains a reverse-signal-alarm requirement applicable to motor
vehicles, and existing Sec. 1926.602(a)(9)(ii) contains a similar
requirement applicable to earthmoving and compacting equipment.
Because those construction standards apply to motor vehicles and
earthmoving and compacting equipment, the term ``vehicular
equipment'' in existing Sec. 1910.269(p)(1)(ii), which OSHA drew
from those construction standards, means motor vehicles and
earthmoving and compacting equipment.
Existing Sec. 1910.269(p)(2) generally requires vehicular
equipment, if provided with outriggers, to be operated with the
outriggers extended and firmly set. Thus, ``vehicular equipment'' in
existing Sec. 1910.269(p)(2) applies more broadly to mobile
equipment fitted with outriggers.
In the final rule, OSHA is clarifying these two provisions in
Sec. 1910.269 and the provision in Sec. 1926.959(b), which
corresponds to existing Sec. 1910.269(p)(2). First, OSHA is
replacing the term ``vehicular equipment'' in the introductory text
to paragraph (p)(1)(ii) with ``motor vehicle or earthmoving or
compacting equipment'' to make it clear that Sec.
1910.269(p)(1)(ii) applies to the same equipment as Sec. Sec.
1926.601(b)(4) and 1926.602(a)(9)(ii). Second, the Agency is using
the term ``mobile equipment'' in final Sec. Sec. 1910.269(p)(2)(i)
and 1926.959(b)(1) in place of the term ``vehicular equipment.''
``Mobile equipment,'' as used in these paragraphs, means mechanical
equipment that is mounted on a body, such as a truck, that is used
to transport the equipment.
---------------------------------------------------------------------------
Mr. Frank Owen Brockman with Farmers Rural Electric Cooperative
Corporation commented that outriggers ``should be used any time the
boom is out of the cradle'' (Ex. 0173).
In considering this comment, OSHA examined accidents in the record
involving overturned mobile equipment. There were several such
accidents in the record involving equipment that overturned, and at
least two of them occurred because the outriggers were not set (Exs.
0002, 0400 \168\). Based on these accidents, OSHA believes that, even
if employees setting up mobile mechanical equipment expect to operate
the equipment within its stability limits, they may inadvertently go
beyond those limits while operating the equipment. Consequently, the
Agency agrees with Mr. Brockman that outriggers should always be set,
at least when it is possible to do so. Therefore, in paragraph (b)(1)
of the final rule, OSHA is requiring the outriggers of mobile
[[Page 20412]]
equipment to be extended and firmly set, except as permitted in
paragraph (b)(3), which provides for the safe operation of the
equipment when the work area or terrain precludes the use of
outriggers.
---------------------------------------------------------------------------
\168\ See the two accidents described at http://www.osha.gov/pls/imis/accidentsearch.accident_detail?id=170872162&id=201403771.
---------------------------------------------------------------------------
The second sentence of proposed paragraph (b)(1) would have
prohibited outriggers from being extended or retracted outside the
clear view of the operator unless all employees were outside the range
of possible equipment motion. There were no comments on this provision,
and OSHA is including this requirement as paragraph (b)(2) in the final
rule. This requirement will prevent injuries caused by extending
outriggers into employees.
If the work area or terrain precludes the use of outriggers,
proposed paragraph (b)(2) would have permitted the operation of the
equipment only within the maximum load ratings specified by the
manufacturer for the particular equipment configuration without
outriggers. There were no comments on this provision, and OSHA is
including this requirement in paragraph (b)(3) in the final rule. The
requirements contained in paragraphs (b)(1) and (b)(3) will ensure the
stability of the equipment while loads are being handled, thereby
preventing equipment tipovers, which could harm employees.
Paragraph (c), which is being adopted without substantive change
from the proposal, requires mechanical equipment used to lift or move
lines or other material to be operated within its maximum load rating
and other design limitations for the conditions under which it is being
used. As OSHA explained in the preamble to the proposal, it is
important for mechanical equipment to be used within its design
limitations so that the lifting equipment does not fail during use and
harm employees (70 FR 34858).
In electric-utility operations, contact between live parts and
mechanical equipment causes many fatalities each year. A sample of
typical accidents involving the operation of mechanical equipment near
overhead lines is given in Table 4. Industry practice (Exs. 0041, 0076,
0077), and existing rules in Subpart V (Sec. Sec. 1926.952(c) and
1926.955(a)(5)(ii)), require that mechanical equipment be kept from
exposed energized lines and equipment at distances generally greater
than or equal to those proposed in Table V-2 (AC Live-Line Work Minimum
Approach Distance). However, incidents involving contact between
mechanical equipment and energized parts still occur during the
hundreds of thousands of operations performed near overhead power lines
each year (Ex. 0017). If the equipment operator is distracted briefly
or if the distances involved or the speed of the equipment towards the
line is misjudged, contact with the lines is likely to occur,
especially when the minimum approach distances are small. Because these
types of contacts cannot be totally avoided, OSHA believes that
additional requirements, beyond provisions for maintaining minimum
approach distances, are necessary for operating mechanical equipment
near exposed energized lines. Paragraph (d) of final Sec. 1926.959
addresses this issue.
Table 4--Accidents Involving the Operation of Mechanical Equipment Near Overhead Lines
----------------------------------------------------------------------------------------------------------------
Number of fatalities
------------------------------------
Type of equipment Grounded Types of accident
Total ---------------------------
Yes No ?
----------------------------------------------------------------------------------------------------------------
Boom Truck/Derrick Truck................. 9 2 ....... 7 Boom contact with energized line.
Pole contact with energized line.
Aerial Lift.............................. 8 ....... 1 7 Boom contact with energized line.
....... ....... ....... ....... Lower boom contact with energized
line.
....... ....... ....... ....... Employee working on deenergized
line when upper boom contacted
energized line.
....... ....... ....... ....... Electric current arced from a
winch on a lift used on an
energized line to nearby ground.
Vehicle.................................. 2 ....... 1 1 Line fell on vehicle.
....... ....... ....... ....... Unknown type of vehicle and type
of accident.
----------------------------------------------------------------------
Total................................ 19 2 2 15 .................................
----------------------------------------------------------------------------------------------------------------
Source: OSHA accident investigation data (269-Exs. 9-2 and 9-2A).
Mr. Brian Erga with ESCI proposed a complete revision of proposed
paragraph (d) (Exs. 0155, 0471; Tr. 1249-1253). OSHA decided not to
adopt this proposal. The Agency addresses his specific concerns and
recommendations in the following discussion of the individual
provisions of proposed paragraph (d).
Proposed paragraph (d)(1) would have required that the minimum
approach distances in Table V-2 through Table V-6 be maintained between
the mechanical equipment and live parts while the equipment was being
operated near exposed energized lines or equipment. This provision
would ensure that sufficient clearance is provided between the
mechanical equipment and the energized part to prevent an electric arc
from occurring and energizing the equipment. The requirement to
maintain a minimum approach distance also lessens the chance that the
mechanical equipment will strike the lines and knock them to the
ground. (See 70 FR 34858-34859; 59 FR 4400-4401.)
Mr. Brian Erga with ESCI objected to the prohibition against taking
mechanical equipment inside the minimum approach distance (MAD),
commenting:
[The proposal] requires that mechanical equipment can not be
allowed within the minimum approach distance. However, the electric
utility industry routinely works near MAD, at MAD, and takes
mechanical equipment into MAD during many industry accepted work
practices many times per day. [Ex. 0155]
Mr. Erga argued that proper work methods and grounding would
prevent accidents involving mechanical equipment contacting overhead
power lines. He expanded on his comments in his posthearing submission:
During cross examination at the public hearing on March 2006,
speakers from EEI, NECA, IBEW and others, testified that qualified
workers routinely take mechanical equipment into the Minimum
Approach Distance (MAD). In cross examination of Mr. Tomaseski, IBEW
Director of Safety, was asked, ``is mechanical equipment taken
inside the minimum approach distance at times?'' Mr. Tomaseski
replied ``regularly,''
[[Page 20413]]
and he further stated ``it could be (the standard) rewritten to
offer a better level of safety.''
This standard industry practice of taking mechanical equipment
into MAD occurs when qualified workers are setting new poles,
installing transformers, installing equipment and moving conductors
with mechanical equipment. This practice is safe and effective if
[proper work methods are used].
Table IV-5 ``Accidents Involving the Operation of Mechanical
Equipment Near Overhead Lines,'' page 34859 of the Federal Register,
dated June 15, 2005, details fatalities around mechanical equipment
that were grounded, ungrounded, or not known. However, the table
does not detail how the equipment was grounded, if proper cover-up
was used or if any safety precaution was taken. To date there has
never been a documented case of a worker being injured or killed
around properly grounded mechanical equipment, or when the proper
work methods . . . have been used.
And, as clearly seen in the IEEE paper 91 SM 312-9 PWRD ``Tests
Results of Grounding Uninsulated Aerial Lift Vehicles Near Energized
Lines'' (Attachment 1), whether the vehicle was left ungrounded or
grounded to a temporarily driven ground rod, neither of these two
practices provided any worker protection. However, when the vehicle
was grounded to a proper ground source, electrical hazards to
workers were greatly reduced to survival levels. Use of insulated
cover-up on the exposed energized lines and equipment, or the use of
insulated and tested mechanical equipment are industry accepted and
safe work procedures which should be supported by OSHA. [Ex. 0471]
OSHA does not dispute Mr. Erga's evidence regarding the
effectiveness of grounding and addresses that issue in the discussion
of paragraph (d)(3)(iii), later in this section of the preamble.
Although Mr. Erga maintains that ``qualified workers routinely take
mechanical equipment into the Minimum Approach Distance'' (Ex. 0471),
OSHA does not consider this a valid reason for eliminating proposed
paragraph (d)(1) from Sec. 1926.959. Mr. Erga did not demonstrate that
it is infeasible to comply with proposed paragraph (d)(1). In fact,
when performing tasks such as installing poles or equipment, employers
can use temporary arms or other live-line tools to move the lines far
enough away from mechanical equipment so that the equipment maintains
the required minimum approach distance (269-Ex. 8-5). Moreover,
insulated aerial lifts (discussed later in this section of the
preamble) can be used to install equipment and move conductors (id.)
Mr. Erga also maintains that grounding mechanical equipment and
other safety precautions, such as insulating the lines with coverup,
provide better protection than the proposed rule. However, he did not
explain how grounding, insulated coverup, or any of the other practices
he recommended protect employees from conductors being knocked down as
a result of contact by mechanical equipment. The practices he
recommended can help protect employees who contact energized equipment;
however, those practices do not protect employees from being injured or
killed by energized lines contacting them directly or energizing the
earth around them.
Proposed Sec. 1926.959(d)(1) was equivalent to existing Sec.
1910.269(p)(4)(i). Mr. Erga was the only rulemaking participant in
either this rulemaking or the 1994 rulemaking to object to the
prohibition against taking mechanical equipment into the minimum
approach distance. OSHA concludes that this provision of proposed
paragraph (d)(1) is reasonably necessary and appropriate and is
including it in the final rule.
The proposal specified minimum approach distances in proposed Table
V-2 through Table V-6. However, in the final rule, Sec.
1926.960(c)(1)(i) requires the employer to establish minimum approach
distances. (See the summary and explanation of Sec. 1926.960(c)(1)(i),
later in this section of the preamble.) Accordingly, final Sec.
1926.959(d)(1) requires mechanical equipment to maintain ``the minimum
approach distances, established by the employer under Sec.
1926.960(c)(1)(i)'' rather than ``the minimum approach distances of
Table V-2 through Table V-6,'' as proposed.
Mr. Erga questioned whether proposed paragraph (d)(1) allowed a
qualified employee to ``use insulating protective material to cover the
line and then go into [the minimum approach distance] with a conductive
boom'' (Ex. 0155). The word ``exposed'' is defined in final Sec.
1926.968 as ``[n]ot isolated or guarded.'' The word ``isolated'' is
defined in final Sec. 1926.968 as ``Not readily accessible to persons
unless special means for access are used.'' (See the summary and
explanation for final Sec. 1926.960(b)(3) for a discussion of this
definition.) The word ``guarded'' is defined in final Sec. 1926.968 as
covered, fenced, enclosed, or otherwise protected, by means of suitable
covers or casings, barrier rails or screens, mats, or platforms,
designed to minimize the possibility, under normal conditions, of
dangerous approach or inadvertent contact by persons or objects. A note
following the definition of ``guarded'' explains that conductors that
are insulated, but not otherwise protected, are not guarded. Thus,
energized lines and equipment that are protected only by rubber
insulating equipment are neither guarded nor isolated from the
mechanical equipment and would, consequently, still be ``exposed'' for
purposes of final paragraph (d)(1). Therefore, under these conditions,
employers must ensure that mechanical equipment complies with the
minimum approach distance.
Proposed paragraph (d)(1) provided an exception permitting the
insulated portion of an aerial lift operated by a qualified employee
located in the lift to breach the minimum approach distance. The Agency
is adopting this exception in final paragraph (d)(1) with only minor
editorial changes. As OSHA noted in the preamble to the proposal,
aerial lifts are designed to enable an employee to position himself or
herself at elevated locations with a high degree of accuracy (70 FR
34859). The aerial-lift operator is in the bucket next to the energized
lines and, therefore, can easily judge the approach distance. This
requirement minimizes the chance that the equipment will contact an
energized line and that the energized line will be struck down should
such contact occur. Furthermore, the employee operating the lift in the
bucket would be protected under the provisions of final Sec. 1926.960
from the hazards of contacting the live parts. As the aerial lift is
insulated, employees on the ground are protected from electric shock in
case the aerial lift contacts the lines, provided that the contact is
made above the insulated section of the boom. OSHA further noted in the
preamble to the proposal that Sec. 1926.959(c) \169\ and other
provisions would protect employees against the possibility that the
aerial lift would strike down the power line (id.).
---------------------------------------------------------------------------
\169\ Paragraph (c) of final Sec. 1926.959 requires mechanical
equipment used to lift or move lines to be used within its maximum
load rating and other design limitations. This provision will ensure
that an aerial lift used to move an overhead line conductor is
designed for that purpose and operated in a manner that will not
cause the conductor to fail.
---------------------------------------------------------------------------
Two commenters requested clarification of the exception specified
in proposed paragraph (d)(1) for parts of insulated aerial lifts (Exs.
0186, 0192). Mr. Anthony Ahern of Ohio Rural Electric Cooperatives
requested clarification regarding the portion of the boom of an aerial-
lift truck that would be considered uninsulated (Ex. 0186). He noted
that some aerial devices have second insulated inserts in the lower
portion of their booms and that some companies treat these inserts as
secondary protection and do not regularly dielectrically test them
(id.). In
[[Page 20414]]
addition, an aerial-lift manufacturer, Altec Industries, offered these
---------------------------------------------------------------------------
comments:
It is important to clarify that insulated aerial lifts have
conductive components located above their insulated sections. The
insulated aerial lift allows a qualified employee using appropriate
PPE to approach within the minimum approach distance to a single
unguarded energized conductor. However the minimum approach distance
to other unguarded conductors at different potentials remain in
effect. The qualified employee may not approach, or take any
conductive object, including conductive portions of an insulated
aerial lift (e.g., material handling system) that are located above
its insulated section, into the minimum approach distance of two
unguarded conductors at different electrical potential. [Ex. 0192]
Altec recommended that the exception be worded, in part: ``the
insulated portion of an aerial lift operated by a qualified employee in
the lift is exempt from this requirement if the applicable minimum
approach distance ARE maintained between the CONDUCTIVE PORTIONS OF THE
AERIAL LIFT LOCATED ABOVE INSULATION, THE uninsulated portions of the
aerial lift and exposed objects at a different potential'' (id.;
emphasis in original).
Final paragraph (d)(1) will protect employees on the ground by
ensuring that the equipment does not become energized and that the
overhead power lines are not knocked to the ground. Both of these
conditions pose hazards for ground workers. For the purposes of final
paragraph (d)(1), OSHA considers ``the insulated portion of an aerial
lift'' to be that portion of an insulated aerial lift that is on the
end of the insulated boom section farthest from the vehicle supporting
the aerial lift. This is the portion of the aerial device that is
insulated from the vehicle. If contact with an energized line is made
on this portion of the boom, employees on the ground are
protected.\170\ The Agency does not believe that Altec's recommended
language would further clarify this requirement. In addition, OSHA does
not consider insulated inserts that the employer does not deem to be
insulation, or does not maintain, to be part of the insulated portion
of the aerial lift as specified by final paragraph (d)(1).
---------------------------------------------------------------------------
\170\ Requiring the equipment to be operated by an employee in
the aerial lift, who has better control over the distance between
the equipment and the power line than an operator on the ground,
also ensures that the line is not knocked down.
---------------------------------------------------------------------------
It should be noted that, even if the exception in final paragraph
(d)(1) for the insulated portions of aerial lifts applies, the employee
must still maintain the minimum approach distances to the extent
required in final Sec. 1926.960(c)(1). In addition, final Sec.
1926.959(d)(1) requires the conductive portions of the boom to
continuously maintain the minimum approach distances from conductive
objects at potentials different from that on which the employee is
working. It should also be noted that the insulating portion of the
boom can be bridged by improper positioning of the boom or by
conductive objects suspended from the aerial lift platform. For
example, the insulating portion of the boom will be bridged when it is
resting against a grounded object, such as a utility pole, or when the
employee in an aerial bucket is holding onto a grounding jumper. For
purposes of final Sec. 1926.959(d)(1), OSHA does not consider any part
of the aerial lift to be insulated when the insulation is bridged.
Paragraph (d)(2), which is being adopted without substantive change
from the proposal, requires a designated employee to observe the
operation and give timely warnings to the equipment operator before the
minimum approach distance is reached. There is an exception to this
requirement for situations in which the employer can demonstrate that
the operator can accurately determine that the minimum approach
distance is being maintained. As OSHA explained in the preamble to the
proposal, determining the distance between objects that are relatively
far away from an equipment operator who is standing on the ground can
sometimes be difficult (70 FR 34859). For example, different visual
perspectives can lead to different estimates of the distance, and lack
of a suitable reference point can result in errors (269-Ex. 8-19). In
addition, an operator may not be in the best position to observe the
clearance between an energized part and the mechanical equipment
because, for example, an obstruction may block his or her view.
An aerial-lift operator would not normally need to judge the
distance between far away objects. In most cases, an aerial-lift
operator is maintaining the minimum approach distance from energized
parts relatively close to himself or herself, and it should be easy for
him or her to stay far enough away from these parts. In such cases, the
employer would normally be able to demonstrate that the employee can
maintain the minimum approach distance without an observer. However,
even an aerial-lift operator may have difficulty maintaining the
minimum approach distances in certain circumstances. For example, the
congested configuration of some overhead power lines may necessitate
maintaining clearance from more than one conductor at a time, or an
aerial-lift operator may need to judge the distance between the lower,
uninsulated portion of the boom and a conductor that is located well
below the operator. In these situations, in which it is unlikely that
an employer could demonstrate that the operator could accurately
determine that the required distance is being maintained, an observer
is required.
Final paragraph (d)(3) will protect employees, primarily employees
on the ground, from electric shock in case contact is made between the
mechanical equipment and the energized lines or equipment. This
paragraph requires employers to take one of three alternative
protective measures if the equipment can become energized. The first
option (paragraph (d)(3)(i)) requires that energized lines or equipment
exposed to contact with the mechanical equipment be covered with
insulating protective material that will withstand the type of contact
that could be made during the operation. The second option (paragraph
(d)(3)(ii)) requires the mechanical equipment to be insulated for the
voltage involved. Under this option, the mechanical equipment must be
positioned so that uninsulated portions of the equipment cannot come
within the applicable minimum approach distance of the energized line
or equipment.\171\
---------------------------------------------------------------------------
\171\ This provision contrasts with final paragraph (d)(1),
which prohibits mechanical equipment (except, in some situations,
the insulated portion of an aerial lift) from being taken closer
than the minimum approach distance to exposed energized lines and
equipment, but allows the equipment to be positioned so that it is
possible to breach that distance.
---------------------------------------------------------------------------
Mr. Brian Erga with ESCI was concerned about the requirement in
proposed paragraph (d)(3)(ii) that insulated equipment be positioned so
that its uninsulated portions cannot approach energized lines or
equipment closer than the minimum approach distance, commenting:
OSHA 1910.269(p)(4) is currently being read word for word that
when using the insulated portion of mechanical equipment, the un-
insulated portion cannot possibly ever reach into [the minimum
approach distance]. This requires the truck to be positioned so far
away that it cannot lift anything, and is often impractical since
the truck may need to be 30 feet from the pole or line to keep the
possibility of the un-insulated portion entering [the minimum
approach distance]. [Ex. 0155]
Paragraph (d)(3)(ii) in the final rule, which applies to insulated
equipment, requires the mechanical equipment to be positioned so that
the uninsulated
[[Page 20415]]
portion cannot approach any closer than the minimum approach distance.
OSHA understands that this may not always be practical, depending on
the work to be performed, the location of the energized lines and
equipment, and available operating positions for the mechanical
equipment. However, the Agency notes that this paragraph presents one
of three options that employers may take to comply with final paragraph
(d)(3). The first and third options, in final paragraphs (d)(3)(i) and
(d)(3)(iii), permit mechanical equipment, including insulated
equipment, to be positioned more closely to energized lines and
equipment provided that employers take the precautions specified in
those paragraphs. (Note that final paragraph (d)(1) still generally
requires mechanical equipment to be operated so that the minimum
approach distances, established by the employer under final Sec.
1926.960(c)(1)(i), are maintained from exposed energized lines and
equipment, regardless of where the equipment is positioned.)
The third compliance option, specified in final paragraph
(d)(3)(iii), is for each employee to be protected from the hazards that
could arise from contact of mechanical equipment with the energized
lines or equipment. The measures used must ensure that employees will
not be exposed to hazardous differences in electric potential. Based on
the Sec. 1910.269 rulemaking record, OSHA concluded that vehicle
grounding alone could not always provide sufficient protection against
the hazards of mechanical equipment contact with energized power lines
(59 FR 4403). However, the Agency recognized the usefulness of
grounding as a protective measure against electric shock when it is
used with other techniques. Therefore, proposed paragraph (d)(3)(iii),
which was equivalent to existing Sec. 1910.269(p)(4)(iii)(C),
required:
(1) Using the best available ground to minimize the time the lines
or equipment remain energized,
(2) Bonding equipment together to minimize potential differences,
(3) Providing ground mats to extend areas of equipotential, and
(4) Using insulating protective equipment or barricades to guard
against any remaining hazardous electrical potential differences.
To comply with the third compliance option in final paragraph
(d)(3)(iii), the employer must use all of these techniques, unless it
can show that it is using other methods that protect each employee from
the hazards that could arise if the mechanical equipment contacts the
energized lines or equipment. The techniques listed in paragraph
(d)(3)(iii): (1) minimize differences in electrical potential, (2)
minimize the time employees would be exposed to hazardous electrical
potentials, and (3) protect against any remaining hazardous electrical
potentials. The performance-oriented requirements in final paragraph
(d)(3)(iii) assure that employees are protected from the hazards that
could arise if the mechanical equipment contacts energized parts.
Information in Appendix C to final subpart V provides guidelines for
employers and employees that explain various measures for protecting
employees from hazardous differences in electrical potential and how to
use those measures. A note referencing this appendix is included after
final paragraph (d)(3)(iii).
Mr. Erga objected to proposed paragraph (d)(3)(iii). He recommended
that mechanical equipment always be grounded ``cradle to cradle,'' that
is, from the time the boom lifts out of the cradle until it returns
(Tr. 1237) and that it always be grounded when it comes within 3 meters
(10 feet) of energized lines or equipment (Tr. 1252). He recommended
further that the standard provide three options to supplement this
grounding requirement: (1) that the lines or equipment be covered, (2)
that the mechanical equipment be insulated, or (3) that barricades,
ground mats, and rubber insulating gloves be used (Tr. 1252).
OSHA concludes that it is not always necessary to ground mechanical
equipment operated near energized lines or equipment. Under the first
option in final paragraph (d)(3), the energized lines or equipment are
covered with insulating protective material that will withstand the
type of contact that could be made during the operation. This option
should prevent the mechanical equipment from becoming energized, and
the Agency, therefore, concludes that grounding is unnecessary for this
option. Under the second option in final paragraph (d)(3), the
uninsulated portion of insulated mechanical equipment must be
positioned so that it cannot approach any closer than the minimum
approach distance. This option also should prevent the mechanical
equipment from becoming energized, and the Agency concludes that
grounding is unnecessary under this option as well.
The third option in final paragraph (d)(3) requires that mechanical
equipment be grounded unless the employer can demonstrate that other
methods in use will protect each employee from the hazards that could
arise if the mechanical equipment contacts the energized lines or
equipment. In his comments, Mr. Erga referred to an IEEE paper on
grounding, explaining:
IEEE paper 91 SM 312-9 PWRD ``Test results of grounding un-
insulated aerial lift vehicles near energized distribution lines'' .
. . clearly shows mechanical equipment grounded to the best
available ground reduces the voltage and current exposed to the
worker by more than 96%. The ESCI staff knows of no electrical
worker ever killed or injured around properly grounded mechanical
equipment that has become accidentally energized. [Ex. 0155;
emphasis included in original]
The IEEE paper to which Mr. Erga referred clearly shows that using the
best available ground provides the most protection for employees and,
therefore, supports the requirement in final paragraph (d)(3)(iii)(A)
to ground the mechanical equipment to the best available ground (Ex.
0472). However, the paper also demonstrates that this ground is
insufficient by itself to protect employees fully. With grounding
alone, the current through a resistor of more than 900 ohms is high
enough to injure and possibly kill an employee. OSHA has considered the
minimum resistance of an employee to be 500 ohms, not 1,000 ohms, as
specified in the paper (59 FR 4406). As NIOSH states in its Publication
No. 98-131, Worker Deaths by Electrocution: A Summary of NIOSH
Surveillance and Investigative Findings, ``High-voltage electrical
energy quickly breaks down human skin, reducing the human body's
resistance to 500 Ohms'' (Ex. 0141). Using Ohm's Law, current is
inversely proportional to resistance, and the current through a 500-ohm
resistor would be nearly twice the current shown in the IEEE paper. In
addition, the testing for the IEEE paper was performed with a 7,200-
volt power line. Distribution and transmission lines of higher
voltages, which are not uncommon, would result in even higher currents
through a resistor. Thus, the evidence provided by Mr. Erga
demonstrates the need for additional measures beyond grounding, such as
the measures required by the final rule.
As noted earlier, final paragraph (d)(3)(iii) requires the employer
to take specified measures unless it can demonstrate that the methods
in use protect each employee from the hazards that could arise if the
equipment contacts the energized line or equipment. Mr. Erga's proposal
would require only two of those measures: Grounding and one of three
additional measures, two of which are comparable to measures required
by final paragraph (d)(3)(iii). OSHA continues to believe that all of
the measures listed in final
[[Page 20416]]
paragraph (d)(3)(iii) will protect employees from hazardous differences
in electrical potential as explained in the preamble to the 1994 Sec.
1910.269 final rule (59 FR 4402-4403). Employers are free to use other
protective measures, including those proposed by Mr. Erga, but these
employers must demonstrate that the methods in use protect each
employee from the hazards that could arise if the equipment contacts an
energized line or equipment. OSHA concludes that it is important for
employers that do not implement all of the measures required by final
paragraph (d)(3)(iii) to evaluate their systems, and the alternative
measures they select, to ensure that employees are protected.
Therefore, OSHA is not adopting Mr. Erga's recommended changes to
paragraph (d)(3)(iii).
OSHA is including paragraph (d)(3) in the final rule substantially
as proposed. The Agency has, however, made technical changes to the
proposed language to clearly distinguish between references to
mechanical equipment and references to energized equipment. Several
provisions in proposed paragraph (d)(3) used the word ``equipment''
without specifying whether it meant the mechanical equipment itself or
the energized equipment that the mechanical equipment could contact.
Although the language was clear from the context, the final rule
consistently states which term applies. Also, in two places, proposed
paragraph (d)(3) used the term ``energized lines'' when OSHA meant
``energized lines or equipment.'' The final rule corrects these
oversights. In addition, final paragraph (d)(3)(ii) requires mechanical
equipment to maintain ``the minimum approach distances, established by
the employer under Sec. 1926.960(c)(1)(i),'' rather than ``the minimum
approach distances specified in Table V-2 through Table V-6,'' as
proposed.
11. Section 1926.960, Working on or Near Exposed Energized Parts
Paragraph (a) specifies the scope of Sec. 1926.960 of the final
rule. This section applies to work on exposed live parts and work near
enough to such parts to expose the employee to any hazard they present.
Many of the provisions in this section have been taken directly from
existing Sec. 1910.269(l).
Paragraph (b) contains general requirements for working on or near
live parts. OSHA is adopting paragraph (b)(1) in this final rule
without change from the proposal. This paragraph requires employees
working on, or with, exposed energized lines or parts of equipment (at
any voltage), and employees working in areas containing unguarded,
uninsulated energized lines or parts of equipment operating at 50 volts
or more, to be qualified employees. Without proper training in the
construction and operation of the lines and equipment and in the
electrical hazards involved, workers performing this type of work are
at risk of being electrocuted and also may expose others to injury. In
areas containing unguarded live parts energized at 50 volts or more,
untrained employees would not be familiar with the practices that are
necessary to recognize and avoid contact with these parts.
Commenting on the language in proposed paragraph (b)(1), Mr. Tommy
Lucas with TVA questioned what OSHA means by ``areas containing
unguarded, uninsulated energized lines or parts of equipment'' (Ex.
0213). He noted that the ``area'' at issue could be the room, yard, or
building in which the equipment is located.
Paragraph (e) of Sec. 1926.966 of the final rule contains
requirements for guarding rooms containing electric supply equipment in
substations. Paragraphs (u)(4) and (v)(4) of existing Sec. 1910.269
contain corresponding requirements for maintenance work in substations
and generating plants. These provisions generally require live parts
operating at 50 volts or more to be in rooms or spaces enclosed within
fences, screens, partitions, or walls so as to minimize the possibility
that unqualified persons will enter. (See existing Sec.
1910.269(u)(4)(ii) and (v)(4)(ii) and final Sec. 1926.966(e)(2).)
These are the areas to which final Sec. 1926.960(b)(1)(ii) (and the
corresponding requirement in final Sec. 1910.269(l)(1)(ii)) refer.
The definition of ``qualified employee'' contains a note to
indicate that employees who are undergoing on-the-job training are
considered to be qualified if they have demonstrated an ability to
perform duties safely and if they are under the immediate supervision
of a qualified employee. (See the discussion of this definition under
the summary and explanation of final Sec. 1926.968.) Therefore,
employees in training, who have demonstrated an ability to perform
duties safely and are under the direct supervision of a qualified
employee, are permitted to perform the types of work described in
paragraph (b)(1). OSHA believes that close supervision of trainees will
permit employers to correct errors before they cause accidents.
Allowing these workers to perform tasks under workplace conditions also
may better prepare the employees to work safely.
Paragraph (b)(2), which is similar to the last sentence of the
introductory text of existing Sec. 1910.269(l)(1), is being adopted in
the final rule without change from the proposal. This paragraph
requires lines and equipment to be considered and treated as energized
unless they have been deenergized under the provisions of final Sec.
1926.961. Existing Sec. 1926.950(b)(2) requires electric lines and
equipment to be considered energized until determined to be deenergized
by tests or other appropriate means. The existing standard does not
specify what those appropriate means are. However, even if the line or
equipment is tested and found to be deenergized, it may become
reenergized through contact with another source of electric energy or
by someone reenergizing it at its points of control. So Sec. 1926.961
of the final rule contains requirements for deenergizing electric power
transmission and distribution lines and equipment. Unless the
procedures contained in that section have been followed, lines and
equipment cannot reliably be considered as deenergized.
Two-Person Rule
If an employee working on or near energized electric power
transmission or distribution lines or equipment is injured by an
electric shock, a second employee will be needed to provide emergency
care to the injured employee. As noted under the summary and
explanation of final Sec. 1926.951(b), discussed earlier in this
section of the preamble, CPR must begin within 4 minutes after an
employee loses consciousness as a result of an electric shock. OSHA is
requiring the presence of a second employee during certain types of
work on or near electric power transmission or distribution lines or
equipment to ensure that CPR begins as soon as possible and to help
ensure that it starts within the 4-minute timeframe. (Note that final
Sec. 1926.951(b) requires at least two people trained in first-aid
procedures, including CPR, for field work involving two or more
employees at a work location.)
OSHA proposed, in paragraph (b)(3)(i) of Sec. 1926.960, to require
the presence of at least two employees during the following types of
work:
(1) Installation, removal, or repair of lines energized at more
than 600 volts,
(2) Installation, removal, or repair of deenergized lines if an
employee is exposed to contact with other parts energized at more than
600 volts,
(3) Installation, removal, or repair of equipment, such as
transformers, capacitors, and regulators, if an employee is exposed to
contact with parts energized at more than 600 volts,
[[Page 20417]]
(4) Work involving the use of mechanical equipment, other than
insulated aerial lifts, near parts energized at more than 600 volts,
and
(5) Other work that exposes an employee to electrical hazards
greater than, or equal to, the electrical hazard posed by these
operations.
However, OSHA also proposed exemptions to the two-person
requirement to account for work that the Agency believed could be
performed safely by a single employee or that must be performed as
quickly as possible for public-safety purposes. These exemptions were
proposed in paragraph (b)(3)(ii) for the following operations:
(1) Routine circuit switching, if the employer can demonstrate that
conditions at the site allow safe performance of this work,
(2) Work performed with live-line tools if the employee is in a
position from which he or she is neither within reach of nor exposed to
contact with energized parts, and
(3) Emergency repairs to the extent necessary to safeguard the
general public.
OSHA based the proposed two-person rule on existing Sec.
1910.269(l)(1)(i) and (l)(1)(ii). OSHA explained in the preamble to the
proposal that the first four work operations listed in proposed
paragraph (b)(3)(i) were the operations that expose employees to the
greatest risk of electric shock, as demonstrated by the 1994 Sec.
1910.269 rulemaking record (70 FR 34861). OSHA proposed the fifth and
last category in paragraph (b)(3)(i) to cover additional types of work
that pose equal or greater electrical hazards. The preamble to the
proposal noted that operations covered under existing Sec.
1910.269(l)(1)(i) are performed during construction, as well as during
maintenance (id.). The preamble further noted that construction
operations are similar to the operations performed during maintenance
work and that the Agency believed that these operations involved the
same hazards (id.). For example, using mechanical equipment near a
7200-volt overhead power line during construction of a new line poses
hazards that are equivalent to the hazards posed during the use of
mechanical equipment to replace a damaged pole on an existing line of
the same voltage. Thus, OSHA proposed to extend the existing general
industry requirement to construction.
The proposed requirement for at least two employees to be present
during certain operations generally would not have applied if the
voltage of the energized parts involved was 600 volts or less. In the
proposal, OSHA requested comments on whether the final rule should
extend the application of the two-person rule to any operations
involving work on installations operating at 600 volts or less.
Most commenters opposed changing the proposed rule to require two
persons for work on energized lines or parts operating at 600 volts or
less. (See, for example, Exs. 0175, 0177, 0209, 0210, 0212, 0219, 0224,
0227.) Some of these rulemaking participants likened this work to the
work performed by electricians, for which consensus standards do not
require the presence of two people. (See, for example, Exs. 0175, 0209,
0212.) For instance, Ms. Salud Layton with the Virginia, Maryland &
Delaware Association of Electric Cooperatives commented:
We do not see the need for a second person on the job site for
voltages below 600 Volts. . . . This work is generally easier and
less hazardous. Work below 600 volts is generally similar to
electricians work. Neither the NEC nor NESC require two employees to
be present when working these voltages. Most electricians isolate
themselves only thru the use of insulated tools. Utilities commonly
exceed that level of protection by requiring the use of Class 0
gloves, in addition to the use of insulated tools. This combination
effectively negates the need for a second person. The use of
insulated tools with Class 0 gloves helps with protection and also
eliminates the need for a second person. [Ex. 0175]
Mr. Allan Oracion with Energy United EMC similarly commented that work
at voltages of 600 volts and less is less hazardous than work at higher
voltages and that there is little potential for injury during ``low-
voltage'' work as long as other applicable OSHA standards are followed
(Ex. 0219). Others argued that a requirement for a second person would
be costly and impractical without substantial benefits. (See, for
example, Exs. 0177, 0224, 0227.) EEI commented:
EEI submits that there is no need for further precautions to be
required for such work, provided that the required insulated cover-
up materials are used and personal protective equipment is being
worn by employees while working on lines and equipment energized at
less than 600 volts. One moderately sized utility forecasts that if
it is required to replace existing one-person crews with two-person
operations due [to] a revision in this requirement, the cost to the
company would be approximately $ 3.8 million annually. OSHA has
shown no data supporting a change in the requirements for work at
less than 600 volts, including none showing that the benefit, if
any, to be derived from unspecified additional precautions would be
reasonably related to the cost. [Ex. 0227]
In responding to OSHA's request for comments on whether to require two
persons for work at voltages of 600 volts or less, Consumers Energy
noted that its accident experience indicated that employees who work
alone have a significantly lower injury incidence rate than employees
working together (Ex. 0177). Also on this issue, Siemens Power
Generation commented that ``OSHA should allow the employer to evaluate
the hazard and determine which situations meet the need for a two
person rule'' (Ex. 0163).
Some commenters maintained that a second person should be present
when work is performed on equipment energized at 600 volts or less.
(See, for example, Exs. 0126, 0161, 0197, 0230.) Mr. Brad Davis of BGE
suggested that ``the same care should be taken at all voltage levels''
(Ex. 0126). Mr. James Junga with Local 223 of the UWUA maintained that
two persons should be required for all work on voltages of 480 volts or
more, commenting:
Working on secondary voltage at or above 480 volts should also
require two qualified persons. I believe this voltage is extremely
dangerous and should not be performed by one person [because of] the
quick response that is necessary for a person who gets in contact
with energized equipment operating at 480 volts. [Ex. 0197]
IBEW recommended that two-person crews always be required for
construction work covered by Subpart V and that Sec. 1910.269 be
amended to include limitations on the work that can be performed by
employees working alone on voltages of 600 volts or less, explaining:
First and foremost, contractor crews, unless assigned only to
perform minor maintenance, should never employ a one person crew.
Contractor crews are generally performing new construction type work
that usually requires several employees on each job. For the
purposes of 1926 Subpart V, reference to a one person crew should
not be included.
For the purpose of 1910.269 and maintenance work, this section
should be clarified. Just because the work involves voltages under
600 volts, there should be limitations as to how much a one person
crew can perform. For example, the job requires open wire 1/0
aluminum secondary conductors that were burned down by a tree limb
to be reinstalled up a pole. This will include clearing the downed
tree parts, splicing the conductors, and sagging and dead-ending the
conductors. Some of this work will even be performed de-energized,
but exposure to other energized conductors is a possibility. There
is no reason to put one person in this situation. [Ex. 0230]
OSHA does not agree with the comments suggesting that work on
circuit parts energized at 600 volts and less is safe. When Sec.
1910.269 was promulgated in 1994, the Agency concluded that there was
``insufficient
[[Page 20418]]
evidence in the record as to whether or not it is safe for qualified
employees to work alone on live parts energized at'' 600 volts or less
(59 FR 4381). In developing the subpart V proposal, OSHA examined more
recent accident data. Table 5 shows the number of electrocutions for
various voltage ranges for the years 1991 through 1998. In the years
1991 to 1994, an average of 3 fatalities occurred per year involving
voltages of 600 volts or less. For the years 1995 to 1998, when Sec.
1910.269 was fully in effect, the average dropped slightly to 2.5
fatalities per year.
Table 5--Fatalities by Voltage and Year
----------------------------------------------------------------------------------------------------------------
100 kV and
Year 600 V or less 601 V to 20 kV 20 to 80 kV higher
----------------------------------------------------------------------------------------------------------------
1991............................................ 3 24 2 1
1992............................................ 5 24 2 0
1993............................................ 3 23 3 1
1994............................................ 1 21 2 2
1995............................................ 2 22 4 5
1996............................................ 4 16 0 2
1997............................................ 1 6 3 1
1998............................................ 3 13 0 1
----------------------------------------------------------------------------------------------------------------
Source: OSHA database of electric power generation, transmission, and distribution accidents (Ex. 0004). These
data include only cases involving electrocution in which the voltage was indicated in the accident abstract.
These data indicate that, in general, there is a substantial risk
of death for employees working on voltages of 600 volts or less.
Although it appears as though exposures to live parts energized at 600
volts or less result in relatively few accidents, OSHA concludes that
these voltages are capable of killing workers. Consumers Energy's
injury rates are not relevant here. The primary purpose of the two-
person rule is the prevention of electrocution. Electrocutions are the
result of electric shocks, which are a very low probability event, and
have no significant effect on injury rates even when they occur in
substantial numbers among all employees performing work addressed by
the final rule.\172\
---------------------------------------------------------------------------
\172\ Electric shocks are responsible for a tiny proportion of
the total number of injuries suffered by workers in the electric
utility industry, as shown in ``Assessment of the Benefits of the
Proposed Standard on Electric Power Generation, Transmission, and
Distribution; Coding Results and Analysis,'' which is an analysis of
reports of injuries in the electric utility industry for calendar
year 1989 (Ex. 0081). As this report shows, the leading categories
for nature of injury are sprains and strains, lacerations,
contusions, and scratches and abrasions, which together accounted
for over 70 percent of the injuries. Electric shock accounted for
only 0.7 percent of the injuries.
---------------------------------------------------------------------------
In addition, the types of work commonly assigned to crews of more
than one employee include line installation and removal and the use of
mechanical apparatus to lift or position material (59 FR 4380). This
heavy type of work seems more likely to cause sprains and strains,
lacerations, contusions, and scratches and abrasions, which form the
majority of line worker injuries, than the lighter type of work
commonly assigned to employees working alone, such as switching (Ex.
0081). OSHA, therefore, concludes that it is unlikely that the
increased incidence rates experienced by Consumers Energy for employees
working together are due to an increased incidence of electric shock.
OSHA does not believe, and it is illogical to suggest, that an employee
working alone is less likely to die as the result of an electric shock
than an employee working in an environment in which another employee is
available to provide emergency assistance in the event of a shock
incident.
OSHA also disagrees with comments arguing that requirements for
proper use of electrical protective equipment and other safety-related
work practices make safe any work performed on circuit parts energized
at 600 volts or less. The use of personal protective equipment and
compliance with other OSHA-required work practices may well protect
against hazards posed by these voltages; however, in the 1994 Sec.
1910.269 final rule, the Agency adopted the two-person rule to
supplement work practice and PPE requirements for certain types of
electrical work.
In the rulemaking on the 1994 Sec. 1910.269 final rule, OSHA
examined the record to determine what operations posed sufficient
residual risk to warrant the presence of a second person. The Agency
found that some work involving installations operating at more than 600
volts posed hazards requiring the presence of a second person, but
other work was safe enough for an employee to perform alone. In this
rulemaking, OSHA is using the same approach to examine the need for a
second person at voltages of 600 volts and less. Because there are
relatively few accidents involving circuit parts energized at 600 volts
or less, the Agency believes it is reasonable to assume, at these
voltages, that there are few types of work that cannot be safely
performed without the presence of a second person. However, OSHA agrees
with IBEW that some low-voltage operations require at least two
persons. There are many types of low-voltage work in which employees
suffer electric shock, including installation, repair, and testing.
Employees have sustained low-voltage electric shocks working on
transformers, circuit breakers, and conductors.
Although the Agency is in general agreement with IBEW about the
need for two persons for some work involving parts energized at 600
volts or less, OSHA decided not to require the presence of a second
person during any specific types of work at such voltages because the
record does not specifically indicate which low-voltage operations are
hazardous enough to warrant a second-person requirement (except when a
worker could contact lines or circuit parts energized at more than 600
volts while working on parts energized at less than 600 volts).
IBEW listed the following factors that limit when a one-person crew
performs work: complexity of the tasks, hot-stick versus the rubber-
glove work method, voltage-range limitations, limited time spent on a
specific task, maintenance work only, and other factors (Ex. 0230). As
already noted, with respect to low-voltage work, the union further
commented:
Just because the work involves voltages under 600 volts, there
should be limitations as to how much a one person crew can perform.
For example, the job requires open wire 1/0 aluminum secondary
conductors that were burned down by a tree limb to be reinstalled up
a pole. This will include clearing the downed tree parts, splicing
the conductors, and sagging and dead-ending the conductors. Some of
this work will even be performed de-energized, but exposure to other
energized conductors is a possibility. There is no reason to put one
person in this situation. [Id.].
[[Page 20419]]
IBEW's comments do not provide the specificity about hazardous low-
voltage tasks that the Agency determined is missing from the record.
The purpose of the second-person requirement is to prevent fatalities
from electric shock. Thus, the complexity of the job and time spent
during the deenergized portion of the work have no bearing on the
likelihood of an electric shock occurring and, accordingly, no bearing
on whether OSHA should require a second person. Finally, in IBEW's
specific example of low-voltage work, a second person is already
required under the final rule if the employee is exposed to parts
energized at more than 600 volts.\173\ The remaining factors listed by
IBEW do not appear to be related to the causes of low-voltage
electrical accidents in the record. Although OSHA is not adopting any
two-person requirements for work exposing employees to contact with
lines or circuit parts energized at 600 volts or less, the Agency
anticipates that, in certain situations, an employer will need to
ensure that at least two trained persons are present for such work to
satisfy the employer's obligations under the general duty clause of the
OSH Act (Section 5(a)(1)). (See Chapter 4, Section III of OSHA's Field
Operations Manual (FOM), CPL 02-00-150 (http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=DIRECTIVES&p_id=4935), for a
discussion of general duty clause violations.)
---------------------------------------------------------------------------
\173\ Final paragraph (b)(3)(i)(B) requires the presence of a
second employee when an employee installing deenergized lines is
exposed to contact with parts energized at more than 600 volts. The
operating voltage of the deenergized line has no bearing on whether
a second person is required.
---------------------------------------------------------------------------
IBEW pointed to new construction as an example of work
necessitating the presence of more than one worker. New construction
involves the installation of lines and equipment. Final paragraph
(b)(3)(i) requires a second person for installation of lines or
equipment if an employee is exposed to contact with other parts
energized at more than 600 volts. IBEW's recommendation would also
require a second person when an employee is exposed to electric-shock
hazards of 600 volts or less and when electric-shock hazards are not
present at all. OSHA decided against requiring a second person for
lower voltage work for the reasons explained previously.
Mr. Junga recommended that the standard require a second person
when ``work is to be performed on electrical lines operating at primary
voltages'' (Ex. 0197). He stated:
If a person working alone gets in contact with energized primary
voltages and they are working alone they will die. No one will be
there to assist, provide CPR, use an AED, provide first aid or even
call for help. [Id.]
OSHA decided not to adopt Mr. Junga's recommendation. The Agency
believes that the language adopted in final Sec. 1926.960(b)(3)(i)
adequately captures work in which employees are exposed to contact with
parts energized at more than 600 volts (primary voltage). The
exceptions to the two-person rule, adopted in final Sec.
1926.960(b)(3)(ii), generally are limited to work that does not expose
the employee to contact with parts energized at more than 600
volts.\174\ OSHA believes that final Sec. 1926.960(b)(3) ensures that
employees at a substantial risk of electric shock are protected by the
presence of a second person.
---------------------------------------------------------------------------
\174\ Under final Sec. 1926.960(b)(3)(ii)(C), one employee
working alone may perform emergency repair work involving parts
energized at more than 600 volts, but only to the extent necessary
to safeguard the general public.
---------------------------------------------------------------------------
Mr. Daniel Shipp with ISEA recommended that OSHA require the
presence of a second person whenever fall hazards are present in
combination with electric-shock hazards (Ex. 0211). He pointed to risks
associated with prolonged suspension in personal fall protection
equipment, commenting:
In a recent Safety and Health Information Bulletin, OSHA
describes the hazard of prolonged suspension in a full body harness
following a fall event. OSHA SHIB 03-24-2004 cites the hazard of
orthostatic intolerance, recommending prompt rescue of suspended
personnel, especially when other complicating factors may be
present. A fall precipitated by exposure to an energized electrical
source will require immediate rescue of the incapacitated employee
and removal to a safe working level where medical aid can be
administered. [Id.]
OSHA recognizes the hazards associated with prolonged suspension in
full body harnesses. Therefore, Sec. 1926.502(d)(20), which applies to
personal fall arrest equipment, requires employers to provide for
prompt rescue of employees in the event of a fall or assure that
employees are able to rescue themselves. The Agency believes that final
Sec. 1926.960(b)(3) will assure the rescue of employees exposed to
electric-shock hazards of more than 600 volts. Also, as explained
previously, under Section 5(a)(1) of the OSH Act, employers may need to
adopt additional measures beyond the measures required in final subpart
V to assure prompt rescue of employees exposed to lower voltage
electric-shock hazards. Because hazards associated with suspension in
full body harnesses already are covered in Sec. 1926.502(d)(20), OSHA
sees no need to address them further in subpart V.
For all of these reasons, OSHA concludes that the evidence in this
rulemaking record does not support adding a two-person requirement for
any operation that existing Sec. 1910.269(l)(1) permits an employee to
perform alone.
Some commenters requested clarification of the relationship between
the two-person rule in paragraph (b)(3) and the requirements on minimum
approach distances, which are discussed later in this section of the
preamble (Exs. 0209, 0230; Tr. 903). Mr. Thomas Frank of Ameren
Corporation requested that OSHA revise the language so that the two-
person rule applies only when an employee performs work within the
applicable minimum approach distance (Ex. 0209). In addition, Mr. Edwin
Hill with IBEW suggested that there is confusion in the industry about
the applicability of minimum approach distances to employees working
alone, commenting:
The current language in 1910.269 is many times misunderstood.
[S]ome people believe that a worker can get closer than the minimum
approach distance to an energized primary conductor when working
alone. This should not be true. . . .
If the standard is going [to] allow a one person crew to work
around energized primary conductors of voltages greater than 600
volts, then it should be clear that minimum approach distances must
be maintained. In the case of underground distribution equipment,
the same detailed restrictions should be explained. Many times
during an underground circuit outage, a worker opens the equipment
doors and is within the minimum approach distances of the energized
cables, both ``live front terminations'' and ``dead front elbows''.
The established minimum approach distances should be maintained at
all times, in any work situation, to ensure worker safety. If these
distances cannot be maintained, rubber insulating cover-up equipment
should be installed. [Ex. 0230]
In this regard, paragraph (b)(3) does not excuse compliance with
otherwise applicable minimum approach-distance requirements. OSHA
previously clarified existing Sec. 1910.269(l)(1), from which it
adopted final paragraph (b)(3), explaining that an employee is
``exposed to contact'' for purposes of Sec. 1910.269(l)(1) when he or
she is in a working position from which he or she can reach or take a
conductive object within the electrical component of the minimum
approach distance.\175\ (See the summary and explanation for final
Sec. 1926.960(c)(1) later in this section of the preamble for a
discussion of the
[[Page 20420]]
electrical component of the minimum approach distance.) OSHA notes that
an employee who is ``exposed to contact'' with an energized part under
this interpretation is still ``exposed to contact'' with the energized
part even when insulation covers the part, the employee, or both. (See
final Sec. Sec. 1910.269(x) and 1926.968 (defining ``exposed'' as not
isolated \176\ or guarded;\177\ merely covering a conductor or an
employee with insulation does not provide guarding or isolation).)
\178\ The Agency also notes that a second employee may be required when
employees can reach or take a conductive object into the electrical
component of the minimum approach distance as they are approaching or
leaving their final work positions or moving from one work position to
another.
---------------------------------------------------------------------------
\175\ See the letter of interpretation dated October 18, 1995,
to Mr. Lonnie Bell, http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=21981.)
\176\ The proposed rule and existing Sec. 1910.269 did not
define ``isolated.'' However, existing Subpart V did define that
term in Sec. 1926.960 as ``not readily accessible to persons unless
special means of access are used.'' This definition is identical to
the definition of this term in OSHA's electrical standards for
general industry (Sec. 1910.399) and construction (Sec. 1926.449)
and in the 2002 NESC (Ex. 0077). This definition also is consistent
with the use of the term ``exposed to contact'' in final paragraph
(b)(3). OSHA believes that defining ``isolated'' will help clarify
the final rule. Consequently, OSHA included the definition of
``isolated'' in final Sec. Sec. 1910.269(x) and 1926.968. The
Agency also included ``exposed to contact'' as a synonym in the
definition of ``exposed'' to clarify that the definition of
``exposed'' also applies to the term used in final paragraph (b)(3).
\177\ Section 1926.968 defines ``guarded'' as ``[c]overed,
fenced, enclosed, or otherwise protected, by means of suitable
covers or casings, barrier rails or screens, mats, or platforms,
designed to minimize the possibility, under normal conditions, of
dangerous approach or inadvertent contact by persons or objects.''
Subpart V recognizes two methods of guarding: barriers (or
enclosures), which serve to ``minimize the possibility . . . of . .
. inadvertent contact,'' and guarding by location, which serves to
``minimize the possibility . . . of dangerous approach.'' As
explained in the note to final Sec. 1926.966(f)(1), the 2002 NESC
contains guidelines for the dimensions of clearance distances about
electric equipment in substations. OSHA considers these clearance
distances as minimizing the possibility of dangerous approach for
employees and considers energized parts conforming to the clearance
distances in the 2002 NESC to be guarded, unless employees bypass
those distances (for example, by accessing a ``guarded'' area). (See
also the summary and explanation for final Sec. 1926.966(f)(1)
later in this section of the preamble.)
\178\ IEEE Std 516 further clarifies the treatment of insulated
cables (Exs. 0041, 0532). For example, Section 4.9.1 of IEEE Std
516-2009 states:
The following are considered to be live parts at their normal
operating voltage unless they are properly grounded:
* * * * *
--Conductors--insulated unless they have solidly grounded and
tested shields (The condition of the conductor insulation exposed to
weather is unknown and may be damaged or defective.) [Ex. 0532]
---------------------------------------------------------------------------
Mr. Junga with UWUA Local 223 was concerned that ``[e]mployers are
pushing for more one-person crews and asking [them] to do more [of] the
work that historically has been performed by two or more qualified
persons'' (Ex. 0197).
In response, OSHA reiterates that the exceptions from the two-
person rule, which are specified in final paragraph (b)(3)(ii) and are
based on existing Sec. 1910.269(l)(1)(ii), will be interpreted and
applied narrowly. Paragraph (b)(3)(ii)(A) permits an employee to work
alone to perform routine circuit switching, as long as the employer can
demonstrate that conditions at the site allow safe performance of this
work. Employees have been injured during switching operations when
unusual conditions, such as poor lighting, bad weather, or hazardous
configuration or state of repair of the switching equipment, were
present (269-Ex. 9-2). If there is poor lighting, for example, the
employer may be unable to demonstrate that the operation can be
performed safely by one employee; the employer could, however, elect to
provide supplemental lighting adequate to make it safe for an employee
to work alone.
Paragraph (b)(3)(ii)(B) permits one employee to work alone with
live-line tools if the employee is positioned so that he or she is
neither within reach of, nor otherwise exposed to contact with,
energized parts. Accidents involving hot-stick work have typically
occurred only when the employee was close enough to energized parts to
be injured--either through direct contact or by contact through
conductors being handled (269-Ex. 9-2).
Finally, paragraph (b)(3)(ii)(C) permits one employee to work alone
on emergency repairs necessary to safeguard the general public. OSHA
will generally consider situations in which there is a downed energized
power line, an energized power line on an occupied vehicle, or a
service outage to life-support equipment to be emergency situations for
which an employee can work alone to safeguard the public. Whether
outages to street lights, traffic lights, or homes are emergency
situations for purposes of final paragraph (b)(3)(ii)(C) depends on
many factors, including the extent and expected duration of the outage
and the availability of alternative means of protecting the public,
such as the availability of police or other officials to manage or stop
traffic at intersections in the absence of working stoplights. Because
hospitals and similar patient-care facilities usually have backup
generators, outages of circuits supplying these facilities will not
generally be deemed to fall under final paragraph (b)(3)(ii)(C).
Minimum Approach Distances
Paragraph (c)(1) in the final rule sets requirements for minimum
approach distances. Paragraph (c)(1)(i) requires employers to establish
minimum approach distances no less than the distances computed by the
equations set in Table V-2 for ac systems or Table V-7 for dc systems.
(The equations in Table V-2 in the final rule are described and
explained later in this section of the preamble.) Paragraph (c)(1)(iii)
of the final rule requires the employer to ensure that no employee
approaches, or takes any conductive object, closer to exposed energized
parts than the employer's established minimum approach distance, except
as permitted in paragraphs (c)(1)(iii)(A), (c)(1)(iii)(B), and
(c)(1)(iii)(C) (as explained later in this section of the preamble).
Table V-2 provides equations for the employer to use to compute
minimum approach distances under paragraph (c)(1)(i). The equations
vary depending on voltage and, for phase-to-phase voltages of more than
72.5 kilovolts, on whether the exposure is phase-to-phase or phase-to-
ground.
Paragraph (c)(1)(ii) in the final rule provides that, no later than
April 1, 2015, for voltages over 72.5 kilovolts, the employer determine
the maximum anticipated per-unit transient overvoltage, phase-to-
ground, through an engineering analysis or assume a maximum anticipated
per-unit transient overvoltage, phase-to-ground, in accordance with
Table V-8. The employer must make any engineering analysis conducted to
determine maximum anticipated per-unit transient overvoltage available
upon request to affected employees and to the Assistant Secretary or
designee for examination and copying. When the employer uses portable
protective gaps to control the maximum transient overvoltage, final
paragraph (c)(1)(ii) also requires that the value of the maximum
anticipated per-unit transient overvoltage, phase-to-ground, must
provide for five standard deviations between the statistical sparkover
voltage of the gap and the statistical withstand voltage corresponding
to the electrical component of the minimum approach distance.
Under Appendix B to existing Sec. 1910.269, employers use
engineering analyses to determine any reductions in maximum transient
overvoltages below the maximum values listed in Table R-7 and Table R-
8. Also under Appendix B to existing Sec. 1910.269, when an employer
is using portable protective gaps, it determines minimum approach
distances using a specific methodology
[[Page 20421]]
that provides for five standard deviations between the statistical
sparkover voltage of the gap and the statistical withstand voltage
corresponding to the electrical component of the minimum approach
distance at the worksite. OSHA incorporated both of these performance
requirements in final paragraph (c)(1)(ii). To explain terms used in
final paragraph (c)(1)(ii), OSHA also added definitions of
``statistical sparkover voltage'' and ``statistical withstand voltage''
to final Sec. 1926.968. Statistical sparkover voltage is a transient
overvoltage level that produces a 97.72-percent probability of
sparkover (in other words, two standard deviations above the voltage at
which there is a 50-percent probability of sparkover). Statistical
withstand voltage is a transient overvoltage level that produces a
0.14-percent probability of sparkover (in other words, three standard
deviations below the voltage at which there is a 50-percent probability
of sparkover). OSHA based both definitions on definitions in IEEE Std
516-2009 (Ex. 0532).
Table V-7 contains minimum approach distances for dc systems. In
Table V-7, the applicable minimum approach distance depends on the
maximum anticipated per-unit transient overvoltage and the maximum
line-to-ground voltage. In accordance with final paragraph (c)(1)(ii)
and Table V-8, an employer using Table V-7 must determine the maximum
anticipated per-unit transient overvoltage through an engineering
analysis that is made available upon request to affected employees and
to the Assistant Secretary or designee for examination and copying or
must assume a maximum per-unit transient overvoltage of 1.8.
Paragraph (c)(1)(i) makes it clear that the required minimum
approach distances are based on engineering principles that OSHA
adopted in the final rule. The Agency is adopting the equations and the
engineering principles behind the minimum approach distances rather
than just setting distances as it did when it promulgated Sec.
1910.269 in 1994. This paragraph also ensures that the minimum approach
distance maintained by each employee is appropriate for the workplace
rather than for the industry in general. OSHA believes that this
approach will better protect each employee than existing Sec. 1910.269
and the proposed rule.
The minimum approach distances set by Table V-2 for phase-to-phase
system voltages of 72.5 kilovolts and less do not vary based on
worksite conditions provided the altitude is 900 meters (3,000 feet) or
less above sea level. Therefore, OSHA calculated the minimum approach
distances for these voltages and listed them in Table V-5 in the final
rule. Note 1 in Table V-2 provides that, for voltages up to 72.5
kilovolts, employers may use the precalculated minimum approach
distances in Table V-5 provided the worksite is at an elevation of 900
meters or less.
Minimum approach distances for phase-to-phase system voltages of
more than 72.5 kilovolts will vary depending on conditions present at
the worksite and possibly the work practices used by employees.
Parameter C in the equation for these voltages varies depending on
whether an insulated tool or conductive object is in the approach
distance (gap) between the employee and the energized part (if the
employee is at ground potential or at the potential of a different
energized part) or between the employee and ground (if the employee is
at the potential of the energized part). For phase-to-ground exposures,
if the employer can demonstrate that there is only air in this gap,
then C equals 0.01. For phase-to-phase exposures, if the employer can
demonstrate that no insulated tool spans the gap and that no large
conductive object is in the gap, then C equals 0.01. In all other
cases, C equals 0.011. When an employee is climbing on a structure or
performing live-line barehand work, OSHA expects that there normally
will only be air present in the gap, and the equation will produce a
smaller minimum approach distance than if the employee is using an
insulated tool to work on energized parts.\179\
---------------------------------------------------------------------------
\179\ Live-line barehand work is work performed with the
employee at the same potential as one of the phase conductors. The
employee is insulated, by air or another insulating medium, from the
other phase conductors and from ground.
---------------------------------------------------------------------------
The saturation factor, a, in the equation for system voltages of
more than 72.5 kilovolts varies depending on whether the exposure is
phase-to-ground or phase-to-phase. For phase-to-ground exposures, the
saturation factor will be reduced slightly, resulting in smaller
minimum approach distances. As explained in Note 3 in Table V-2, unless
the employer can demonstrate that no insulated tool spans the gap and
that no large conductive object is in the gap, the employer must
calculate the saturation factor using the phase-to-ground equations
(with the peak voltage for phase-to-phase exposures), even for phase-
to-phase exposures.
Finally, T \180\ in the equation for phase-to-phase system voltages
of more than 72.5 kilovolts represents the maximum phase-to-ground
anticipated per-unit transient overvoltage, which can vary from
worksite to worksite.
---------------------------------------------------------------------------
\180\ T is the ratio of the 2-percent statistical switching
overvoltage expected at the worksite to the nominal peak line-to-
ground voltage of the system.
---------------------------------------------------------------------------
For voltages over 72.5 kilovolts, employers may use the minimum
approach distances in the tables in Appendix B provided the worksite is
at an elevation of 900 meters or less. The tables in Appendix B contain
minimum approach distances for various values of T. In accordance with
final paragraph (c)(1)(ii), the employer must determine T through
engineering analysis or use the maximum T from Table V-8.
For phase-to-phase system voltages of more than 5,000 volts, the
altitude-correction factor applies when the worksite is at an elevation
of more than 900 meters above sea level. When the worksite is at these
higher elevations, the employer must use the appropriate altitude
correction factor from Table V-4 when calculating minimum approach
distances. Table V-2 explains how to apply the altitude correction
factors in computing minimum approach distances.
As noted earlier, paragraph (c)(1)(i) requires employers to
establish minimum approach distances. Because the elevation and maximum
transient overvoltage may vary from worksite to worksite, each minimum
approach distance established by the employer must be appropriate for
the worksite involved. Employers can avoid establishing separate
distances for every worksite by using worst-case values for elevation
and T or by grouping worksites by ranges for elevation and T.
Paragraph (c)(1) of proposed Sec. 1926.960 would have required
employers to ensure that employees maintain minimum approach distances
from exposed energized parts. Proposed Table V-2 through Table V-6
specified the minimum approach distances. This proposed provision was
borrowed from existing Sec. 1910.269(l)(2), although, as described
later, OSHA proposed to make minor changes to the minimum approach
distances listed in the existing Sec. 1910.269 tables.
Electric power systems operate at a given nominal voltage. However,
the actual voltage on a power line varies above and below that nominal
voltage. For brief periods, the instantaneous voltage on a line can be
3 or more times its nominal value (Ex. 0532).
The safe minimum approach distance assures that an electric arc
will not
[[Page 20422]]
form, even under the most severe transient overvoltages that can occur
on a system and even when the employee makes errors in maintaining the
minimum approach distance. To determine what this distance is for a
specific voltage, OSHA must first determine the size of the air gap
that must be present to prevent arc-over during the most severe
overvoltage that can reasonably be expected to occur on the system.
This gap is the electrical component of the minimum approach distance.
To determine the minimum safe approach distance, OSHA must add extra
distance to account for ergonomic considerations (that is, human
error).
The electrical component depends on five factors:
(1) The maximum voltage,
(2) The wave shape of this voltage,
(3) The configuration of the ``electrodes'' forming the end points
of the gap,
(4) The insulating medium in the gap, and
(5) The atmospheric conditions.
In existing Sec. 1910.269, and in the proposal for this
rulemaking, OSHA borrowed its approach for setting minimum approach
distances from a consensus standard, namely the NESC. OSHA based the
minimum approach distances in existing Sec. 1910.269 on the 1993
edition of the NESC. In this rulemaking, OSHA proposed to adopt
slightly revised minimum approach distances for both Sec. 1910.269 and
subpart V; the revised minimum approach distances in the proposal were
drawn from the updated, 2002 edition of the NESC.
To develop the minimum approach distance tables for the 1993
standard, NESC Subcommittee 8 adopted the following principles:
ANSI/IEEE Std 516 was to be the electrical basis of the
NESC Rules for approach distances for alternating- and direct-current
voltages above 72.5 kilovolts.\181\ Distances for lower voltages were
to be based on ANSI/IEEE Std 4. The application of ANSI/IEEE Std 516
included the formula used by that standard to derive electrical
clearance distances.
---------------------------------------------------------------------------
\181\ ANSI/IEEE Std 516-1987 (the edition in effect when NESC
Subcommittee 8 revised the minimum approach distances for the 1993
NESC) listed values for the electrical component of the minimum
approach distance, both for air alone as an insulating medium and
for live-line tool sticks in air, that were accepted as being
accurate when the standard was adopted (by IEEE) in 1987.
---------------------------------------------------------------------------
Altitude correction factors were to be in accordance with
ANSI/IEEE Std 516.
The maximum design transient-overvoltage data to be used
in the development of the basic approach distance tables were:
3.0 per unit for voltages of 362 kilovolts and less
2.4 per unit for 500 to 550 kilovolts
2.0 per unit for 765 to 800 kilovolts
All phase-to-phase values were to be calculated from the
EPRI Transmission Line Reference Book for 115 to 138 kilovolts.
An ergonomic-movement factor (inadvertent component) that
accounted for errors in judging the approach distance was to be added
to all basic electrical approach distances (electrical component) for
all voltage ranges. A distance of 0.31 meters (1 foot) was to be added
to all voltage ranges for the ergonomic component. An additional 0.3
meters (1 foot) was to be added to voltage ranges below 72.6 kilovolts.
The voltage reduction allowance for controlled maximum
transient overvoltage was to be such that the minimum allowable
approach distance was not less than the approach distance specified for
the highest voltage listed for the given range.
The transient overvoltage tables were to be applied only
at voltage ranges inclusive of 72.6 to 800 kilovolts. All tables were
to be established using the higher voltage of each separate voltage
range.
After publication of OSHA's proposed rule in 2005, the IEEE
technical committee responsible for revising Standard 516 identified
what in its view was an error in calculating the minimum approach
distances in the IEEE standard that potentially affected the validity
of the minimum approach distances in the 2002 NESC and OSHA's proposed
rule. IEEE Std 516 was revised in 2009 to address the issue identified
by the technical committee. (The error identified by the IEEE committee
is discussed, at length, later in this section of the preamble.) In
light of the IEEE revision process, OSHA twice reopened the record on
subpart V, first in October 2008 and again in September 2009, to
solicit additional comments on minimum approach distances. (See 73 FR
62942, Oct. 22, 2008; 74 FR 46958, Sept. 14, 2009.) The Agency
requested information on whether there was an error in the method OSHA
used to calculate the proposed minimum approach distances and on what
basis OSHA should set minimum approach distances. A public hearing was
held on these issues in October 2009.
In response to the issues OSHA raised about the minimum approach
distances, EEI, IBEW, and the NESC urged the Agency to delay issuing
revised minimum approach distances until after IEEE approved the next
update of the NESC in 2012.\182\ (See, for example, Exs. 0545.1,
0551.1, 0552.1; Tr2. 40-41, 72-75, 151-154.) The commenters maintained
that, in writing the respective standards, the NESC subcommittees give
greater weight to the practical effects of its rules than does the IEEE
subcommittee responsible for IEEE Std 516. The commenters also
maintained that an OSHA standard setting minimum approach distances
that turn out to be different from the distances in the 2012 NESC could
cause confusion.
---------------------------------------------------------------------------
\182\ IEEE approved the 2012 NESC on April 14, 2011, and ANSI
approved the 2012 NESC as an American National Standard on June 3,
2011.
---------------------------------------------------------------------------
The chair of Subcommittee 8 of the NESC, Mr. James Tomaseski,
testified that the NESC serves as the authority on safety requirements
for electric power systems, that (at the time of his testimony) the
NESC had yet to act on the revised methodologies in IEEE Std 516-2009
for calculating minimum approach distances, and that NESC Subcommittee
8 would transcribe the engineering information contained in the 2009
IEEE 516 standard into a user-friendly format (Tr2. 34-41).\183\ He
stated:
---------------------------------------------------------------------------
\183\ The 2012 NESC adopts the 2009 IEEE Std 516 distances for
certain voltage ranges and values of T and permits an engineering
determination of minimum approach distances as an alternative.
NESC's Subcommittee 8 has the task of trying to make sense of
and keep up with this evolving problem [of adopting adequate minimum
approach distances]. Simply put, the IEEE 516 MAD Tables as they are
published today in that [2009] guide are confusing.
This takes us to the point what Subcommittee 8 recommends to
OSHA for this Rule making. The agency should realize this is a
difficult issue, not only for the Technical Subcommittee responsible
for the different Codes, but most importantly for the users of the
Rules. The MAD concept has been around for a long time. Even though
new engineering principles continue to be developed, industry
performance associated with these rules [has] to be considered.
* * * * *
When OSHA revise[s] this Rule, these changes are somewhat
permanent. This rule will probably not be revised again for a long
time. Subcommittee 8 wants to do their part to make sure the MAD
[c]oncepts get fixed correctly this time. The NESC Subcommittee 8
recommends that OSHA leave the record open until the time the
Subcommittee has the opportunity to review public comments as to
what MAD values should be in the NESC. [Tr2. 39-41]
IBEW also maintained that the OSHA standard should be consistent
with the 2012 NESC (Tr2. 151-152). Testifying on behalf of IBEW, Mr.
Donald Hartley stated:
[[Page 20423]]
The IBEW believes the responsibility for developing [minimum
approach distances resides with] the NESC. Technical Subcommittee 8
on Work Rules, the body responsible for writing Part IV of the NESC
where MAD Rules and Tables are located, should [set the rules] for
OSHA to follow.
The NESC is adopted by many states in the U.S. The U.S. [Rural]
Electric Service requires member cooperatives to follow the NESC if
they receive government loans. Many public power utilities,
municipalities are not covered by OSHA. The NESC in these instances
becomes the rule to follow.
* * * * *
The IBEW strongly recommends that OSHA keep this record open
until Subcommittee 8 has the opportunity to review public comment on
this issue and develop final Code Language on the MAD principles and
Rules. [Id.]
EEI argued that, if OSHA failed to follow NESC action on minimum
approach distances, the final rule could differ from the 2012 NESC and
create confusion for the electric utility industry (Ex. 0545.1). Mr.
Stephen Yohay, counsel for EEI, described the potential for confusion
over differing standards as follows:
The other question you asked is whether [there is] confusion in
the industry [resulting from the fact that there are currently
differences between the minimum approach distances in the existing
OSHA standards and the distances in the consensus standards], and I
am going to answer this anecdotally based on my experience in
representing employers in this industry.
I have often, not often, but more than occasionally heard
confusion expressed as to which standards are the applicable
standards, whether they are the OSHA standards, whether they are the
NESC standards. And as you heard Mr. Tomaseski say various companies
adopt different [distances] for their own work practices.
Now when you throw in the element of State plans, you further
confuse the mix. So I think there is some confusion and I think you
all heard him say here earlier, and I think we all agree it is time
for there to be consistency. [Tr2. 102-103]
EEI also pointed out that Section 6(b)(8) of the OSH Act requires
OSHA to explain deviations from national consensus standards (Ex.
0545.1). Mr. Charles Kelly testified to this point on behalf of EEI, as
follows:
Section 6(b)(8) of the Act expresses that OSHA standards should
not deviate from National Consensus Standards without an adequate
statement of reason.
The NESC Committee may or may not adopt the precise distances
stated in the IEEE documents. Therefore, if OSHA incorporates the
IEEE distances in a final standard that is promulgated in the next
year or so, OSHA [may] soon find its final standard at odds with
even the newest version of the NESC.
The NESC, however, is well recognized as the preeminent National
Consensus Standard on clearance distances for electric utility work
on high voltage lines and equipment. Such a result could only create
confusion in the industry. [Tr2. 73]
Mr. Kelly also maintained that the NESC gives greater weight to the
practical application of its rules than does IEEE and that OSHA should
adhere to its past practice of basing its rules for minimum approach
distances on the NESC, testifying:
[B]y virtue of the nature of its membership and the mission of
its Subcommittee 8, we daresay with due respect to IEEE Committee
516, that the NESC's final standards on Work Rules tend to give more
attention to the practical impact that its Rules will have in the
workplace than do IEEE Technical Standards.
[T]he 516 Standard is basically an engineering standard and
built that way on the technical issues whereby the NESC Subcommittee
8 Standard; it deals with the Work Rules and Worker Protection more
specifically.
* * * * *
The usual cycle, and as I mean the historical cycle that OSHA
has followed, is that the IEEE 516 Standard develops its standard,
ballots it and publishes the standard over a period of time.
The NESC Subcommittee 8 reviews 516, develops their standard,
tables, ballots, and publishes it in that order. Then OSHA usually
comes in and reviews the documented proof by both groups, and
incorporates the NESC document into its particular Rule.
The above scenario reflects the past practices used by OSHA in
its development of standards affecting electric power generation,
transmission, and distribution work. [Tr2. 73-74]
Although the Agency considered the commenters' suggestion to hold
the record for this rulemaking open until IEEE approved the 2012 NESC,
OSHA concludes that it is unnecessary to reopen the record to consider
the 2012 NESC in this rulemaking. First, OSHA does not agree that
adopting minimum approach distances that differ from the distances in
the 2012 NESC will produce widespread confusion or lead to additional
risk for employees in the electric power industry. As acknowledged by
some of the rulemaking participants, the distances in existing Sec.
1910.269 and Subpart V differed from the 2009 edition of the NESC.
(See, for example, Tr2. 53, 102-103.) In fact, Mr. Tomaseski presented
slides showing that there were many differences between the NESC, IEEE
Std 516, and the OSHA standards (Ex. 0568). Rulemaking participants
testified that they were not aware of any specific safety problems
arising in the industry by virtue of these discrepancies. (See, for
example, Tr2. 58, 102, 104). Also, counsel for EEI admitted that
``[e]mployers are at least following OSHA standards. . . . Some are
exceeding the values that are in the OSHA standards and adopting more
conservative standards'' (Tr2. 104). In any event, evidence in the
record indicates that consensus standards are constantly evolving (see
for example, Tr2. 39-40, 142-143); therefore, if the Agency were to
adopt the minimum approach distances from the 2012 NESC, it is likely
that there would be differences between the OSHA standard and
subsequent editions of the NESC.
OSHA does not believe there is merit to the commenters' suggestion
that the existence of State plan programs will be an additional source
of confusion for employers. As noted in Section XI, State-Plan
Requirements, later in this preamble, States with OSHA-approved
occupational safety and health plans must adopt standards that are
equivalent to, and at least as protective as, this final rule within 6
months of its promulgation. Thus, States with State plans will adopt
provisions on minimum approach distances that are at least as
protective as the provisions in this final standard. On a technical
issue such as minimum approach distances, OSHA expects that most States
with State plans will choose to incorporate the federal provision as
promulgated in this final rule, although it is possible that one or
more of these States will adopt more protective provisions. Even if
some States do adopt more protective standards, OSHA does not believe
that the resultant differences will result in any significant confusion
for employers.
Public electric utilities in States with State occupational safety
and health plans, including plans that cover only State and local
government employees, will be required to comply with the applicable
State plan standards. Public electric utilities in other States are not
covered by a State plan or by the Federal OSHA standard and may choose
to adhere to the NESC. Private-sector electric utilities must comply
with the Federal or State plan OSHA standards that cover their
worksites. This scheme is well established, and OSHA does not believe
that employers will have difficulty determining the applicable
requirements.
As noted earlier, IBEW suggested that a conflict between the OSHA
and the 2012 NESC minimum approach distances could be problematic for
loan recipients in the United States Department of Agriculture's (USDA)
Rural Development Electric Programs because, according to the union,
utilities receiving USDA loans must comply with the NESC as a condition
of their loans (Tr2. 151). These USDA programs
[[Page 20424]]
provide loans for electric services that meet certain standards, and
IBEW is correct that the NESC is among the standards that these
services must meet (7 CFR 1724.50). However, even if the loan programs
require compliance with the minimum approach distances in the NESC,
employers can meet both the OSHA and USDA loan-program requirements
simply by adopting the more conservative (that is, larger) minimum
approach distances. Therefore, differences between the minimum
approach-distance provisions in this final rule and the minimum
approach distances in the 2012 NESC should not be a problem for
participants in the USDA programs.
Second, the Agency does not believe that considering public input
on the 2012 NESC will result in a standard that is more protective than
the final rule. The NESC minimum approach distances are based on the
minimum approach distances in IEEE Std 516-2009, on which OSHA already
solicited public comment and provided opportunity for additional input
at a public hearing (74 FR 46958). The 2012 NESC does not include any
additional support for the IEEE minimum approach distances, which, as
explained later in this section of the preamble, OSHA rejected. In
addition, reopening the record for this rulemaking would further delay
the final rule. Therefore, OSHA concludes that reopening the record to
gather additional public comment on the 2012 NESC minimum approach
distances is unwarranted.
Finally, in response to the commenters' references to Section
6(b)(8) of the OSH Act the Agency concludes that, with respect to
minimum approach distances, this final rule ``will better effectuate
the purposes of [the] Act'' than the 2012 edition of the NESC. (See the
discussion under the heading OSHA's requirements on minimum approach
distances better effectuate the purpose of the OSH Act than the
national consensus standard, later in this section of the preamble.)
Some commenters maintained that the minimum approach distances in
the 2005 proposed rule, which were based on the 2002 NESC, were safe
despite any technical errors potentially made in calculating those
distances. (See, for example, Ex. 0545.1; Tr2. 79-82.) The commenters
argued that industry experience establishes the safety of the existing
minimum approach distances in Sec. 1910.269. (See, for example, Exs.
0545.1, 0551.1.)
American Electric Power argued against adopting minimum approach
distances different from the minimum approach differences in OSHA's
proposal, relying on calculations they made that were taken from a
paper by Vaisman et al.\184\ (Ex. 0550.1). American Electric Power
described this method as follows:
---------------------------------------------------------------------------
\184\ Vaisman, R., Fonseca, J. R., Andrade, V. H. G., Almeida,
M. A., Hattori, H. K., Melo, M. O. B. C., Teivelis, F., Fernandes,
J. H. M., Silva, J. T. S., Dias, L. E. N., Esmeraldo, P. C. V., and
Samico, R. A. M., ``Switching Impulse Strength of Compact
Transmission Lines,'' IEEE Transactions on Power Delivery, Vol. 8,
No. 3, July 1993 (Ex. 0555).
The method is based on calculating V50[percnt]
(critical flashover[\185\] voltage--CFO) and determining distances
from the V50[percnt] value of conductor-to-
conductor gap test data. The V50[percnt] is
derived from the required VW (withstand voltage), using
the line-to-line overvoltage factor, TL-L. The required
distance for [minimum air insulation distance] and MAD is then taken
from . . . Figure 13 in an IEEE paper by Vaisman [footnote omitted]
et al., 1993, which represents conductor-to-conductor gap test data
from five different laboratories. The test data is based on [alpha]
= 0.50 (ratio between the negative impulse crest and the phase to
phase voltage) which provides more conservative results for
V50[percnt] than [alpha] = 0.33 (Figure 12 of
the aforementioned Vaisman paper). [Id.]
---------------------------------------------------------------------------
\185\ IEEE Std 516-2009 defines ``flashover'' as ``[a]
disruptive discharge through air around and over a surface of solid
or liquid insulation, between parts at different potential or
polarity, produced by application of voltage wherein the breakdown
path becomes sufficiently ionized to maintain an electric arc'' (Ex.
0532). That standard defines ``sparkover'' as ``[a] disruptive
discharge between preset electrodes in either a gaseous or a liquid
dielectric'' (id.). Thus, the more technically correct term for an
electrical discharge across an air gap is ``sparkover.'' However,
the term ``flashover'' has been used historically for either event,
and this preamble uses these terms interchangeably. The critical
flashover distance, V50 or
V50[percnt], is the distance that will
flashover 50 percent of the time at a given voltage.
American Electric Power calculated V50[percnt] to
be 2421 kilovolts for an 800-kilovolt power line (id.). From Figure 13
of the Vaisman paper, American Electric Power determined that the
corresponding minimum air-insulation distance (the electrical component
of the minimum approach distance) was 6.52 meters (21.4 feet) and that
the minimum approach distance (with the ergonomic component included as
explained later in this section of the preamble) was 6.82 meters (22.4
feet). American Electric Power contrasted this with the corresponding
7.91-meter (26-foot) minimum approach distance proposed by OSHA and
concluded that the proposed value was adequately protective (id.).
(See, also, Ex. 0545.1, in which EEI makes a similar argument based on
the Vaisman paper.)
As explained in greater detail later in this section of the
preamble, OSHA concludes that the proposed minimum approach distances
do not provide adequate safety for employees. In addition, OSHA finds
that there are two basic problems with American Electric Power's
comparison of the proposed 800-kilovolt minimum approach distance and
what it considers to be a safe approach distance. First, as is clear
from the Vaisman paper (Ex. 0555), the distances in Figure 13 of that
paper (which correspond to [alpha] = 0.50) are less conservative than
the distances in Figure 12 of that paper (corresponding to [alpha] =
0.33).\186\ The air-insulation distance from Figure 12 appears to be
about 7.8 meters (25.6 feet). Adding the 0.31-meter (1-foot) ergonomic
component yields a comparable minimum approach distance of 8.11 meters
(26.6 feet), which is clearly more protective than the 7.91-meter (26-
foot) minimum approach distance proposed by OSHA in 2005.\187\
---------------------------------------------------------------------------
\186\ American Electric Power commented that an [alpha] of 0.50
``provides more conservative results for V50[percnt]
than [alpha] = 0.33'' (Ex. 0550.1). This comment may be true, but it
is irrelevant. For a given V50[percnt], an
[alpha] of 0.33 produces a more conservative (that is, greater)
minimum approach distance, as is the case here.
\187\ The quality of Figures 12 and 13 in the original Vaisman
paper is poor, and it is difficult to accurately determine the
distance (Ex. 0555). The figures included in American Electric
Power's and EEI's exhibits, which apparently recreated Figure 13
from the Vaisman paper, were of much better quality (Exs. 0550.1 and
0545.1).
---------------------------------------------------------------------------
Second, the testing that serves as the basis for Figures 12 and 13
of the Vaisman paper determined the switching impulse strength of two
conductors in parallel (Ex. 0555). From the paper's description of the
test procedure, OSHA concludes that the testing did not account for
different configurations that could be present during live-line work or
for the presence of workers and the tools and equipment they would be
using to perform this work. As explained later in this section of the
preamble, different electrode configurations and the presence of
workers and other conductive objects in the gap between them can reduce
the electrical strength of the air gap substantially. Thus, although
American Electric Power's and EEI's approach may validly estimate the
strength of a power line while no work is being performed, OSHA
concludes that this approach fails to represent employee exposure
adequately.
For reasons described later in this section of the preamble, the
Agency concludes that there is a significant risk to employees from the
minimum approach distances contained in existing Sec. 1910.269 and
Subpart V. In addition, OSHA concludes that it has enough information
in the rulemaking record to set appropriate minimum approach-distance
requirements.
[[Page 20425]]
Consequently, the Agency decided that it is necessary and appropriate
to include revised minimum approach-distance provisions in this final
rule.
The ergonomic component of MAD. The ergonomic-movement component of
the minimum approach distance is a safety factor designed to ensure
that the employee does not breach the electrical component of the
minimum approach distance in case he or she errs in judging and
maintaining the minimum approach distance. In developing the minimum
approach distance tables for its 1993 standard, the NESC subcommittee
based the ergonomic-movement factor (the ergonomic component of MAD) on
relevant data, including a typical arm's reach of about 610 millimeters
(2 feet) and a reaction time to a stimulus ranging from 0.2 to more
than 1.0 second (269-Ex. 8-19). As OSHA explained in the preamble to
the proposal, the ergonomic-movement factor must be sufficient for the
employee to be able to recognize a hazardous approach to an energized
line and withdraw to a safe position so that he or she does not breach
the air gap required for the electrical component of the minimum
approach distance (70 FR 34862). Thus, the ergonomic-movement distance
should equal the response time multiplied by the average speed of an
employee's movement plus the stopping distance.\188\ The maximum reach
(or range of movement) may place an upper bound on the ergonomic
component. The NESC subcommittee developing the 1993 standard used this
information as a basis for selecting appropriate distances for two
major voltage ranges: 1.1 to 72.5 kilovolts and 72.6 kilovolts and
more.
---------------------------------------------------------------------------
\188\ This calculation is comparable to the calculation of total
braking distance for a motor vehicle. This distance equals the
initial speed of the vehicle times the driver's reaction time plus
the stopping distance of the vehicle after the driver applies the
brakes.
---------------------------------------------------------------------------
For system voltages up to 72.5 kilovolts, phase-to-phase, much of
the work is performed using rubber gloves, and the employee is working
within arm's reach of energized parts. The ergonomic component of the
minimum approach distance must account for this condition since the
employee may not have time to react and position himself or herself out
of danger. A distance of 0.61 meters (2 feet) for the ergonomic
component appears to meet this criterion and was, therefore, adopted by
the NESC subcommittee developing the 1993 standard. This ergonomic
component remained the same in the 2007 NESC, except that the standard
applied it to voltages as low as 751 volts instead of 1100 volts (Ex.
0533).\189\ OSHA used this value in existing Sec. 1910.269 for
voltages of 1.1 to 72.5 kilovolts and proposed to use it in Subpart V
for voltages of 751 volts to 72.5 kilovolts. There were no objections
to this distance on the record.\190\ Therefore, for voltages of 751
volts to 72.5 kilovolts, the final rule adopts a 0.61-meter (2-foot)
ergonomic-movement component of the minimum approach distance, as
proposed.
---------------------------------------------------------------------------
\189\ At all voltages, the values for the ergonomic component of
the minimum approach distance are the same in the 2012 NESC as they
are in the 2007 NESC.
\190\ EEI did, however, object to what it mistakenly believed
was a proposed increase in the ergonomic component over what was
adopted in existing Sec. 1910.269 (Exs. 0227, 0501; Tr. 1056-1082).
OSHA discusses these comments later in this section of the preamble.
---------------------------------------------------------------------------
As OSHA explained in the preamble to the proposed rule, the
applicable work practices change for operations involving lines
energized at voltages over 72.5 kilovolts (70 FR 34862; 269-Exs. 64,
65). Generally, live-line tools are employed to perform the work while
equipment is energized. These tools hold the energized part at a fixed
distance from the employee, ensuring that the minimum approach distance
is maintained during the work operation. Even when live-line tools are
not used, as during live-line barehand work, employees use work methods
that more tightly control their movements than when they perform rubber
glove work, and it is usually easier to plan how to keep employees from
violating the minimum approach distance. For example, employees
planning a job to replace spacers on a 500-kilovolt overhead power line
can circumscribe an envelope (or bounds) of anticipated movement for
the job and ensure that the working position they select keeps this
envelope entirely outside the minimum approach distance. Thus, all the
employees' movements during the job can easily be kept within the
envelope. Additionally, there is limited or no exposure to conductors
at a potential different from the one on which work is being performed
because the distance between conductors is much greater than the
distance between conductors at lower voltages and higher voltage
systems do not present the types of congestion that are found commonly
on lower voltage systems. Consequently, a smaller ergonomic component
is appropriate for higher voltages. The NESC subcommittee developing
the 1993 standard accepted a value of 0.31 meters (1 foot) for this
component. This ergonomic component also remained the same in the 2007
NESC (Ex. 0533). OSHA used this value in existing Sec. 1910.269 and
proposed it in this rulemaking. There were no comments on this issue in
this rulemaking, therefore, OSHA is adopting the proposed ergonomic-
movement component of 0.31 meters (1 foot) for voltages over 72.5
kilovolts.\191\
---------------------------------------------------------------------------
\191\ In the 1994 Sec. 1910.269 rulemaking, OSHA adopted an
ergonomic-movement factor based on English units of 1 foot or 2
feet, depending on voltage. It should be noted that, to three
significant digits, 0.305 meters is 1.00 foot and 0.610 meters is
2.00 feet. In this final rule, OSHA used metric units and rounded
0.305 meters up to 0.31 meters.
---------------------------------------------------------------------------
EEI misconstrued OSHA's proposal as increasing the ergonomic-
movement component in existing Sec. 1910.269 by 0.61 meters (2 feet),
for a total ergonomic component of 1.22 meters (4 feet) for voltages up
to 72.5 kilovolts (Exs. 0227, 0392; Tr. 1056-1082). Testifying on
behalf of EEI, Mr. Clayton Abernathy of OG&E Energy Corporation
described how increasing the minimum approach distance by 0.61 meters
would restrict some of the work performed by his company's employees
(Tr. 1056-1082).
The ergonomic components of the minimum approach distances in
OSHA's proposal were the same as the ergonomic components used for the
minimum approach distances in existing Sec. 1910.269 for voltages over
1,000 volts. The ergonomic component for voltages between 751 volts and
72.5 kilovolts (the voltages addressed by EEI's comments) is 0.61
meters. The ergonomic component of the proposed minimum approach
distances for those voltages was not, contrary to EEI's suggestion,
greater than that value. It appears that EEI's objections were aimed at
two other proposed requirements: (1) Proposed Sec. 1926.960(c)(2)(ii),
which provided that, when using rubber insulating gloves or rubber
insulating gloves with sleeves for insulation against energized parts,
employees put on and take off their rubber insulating gloves and
sleeves when they are in positions from which they cannot reach into
the minimum approach distance, and (2) proposed Sec. 1926.960(d)(2),
which provided that employees performing work near exposed parts
energized at 601 volts to 72.5 kilovolts either work from positions
from which they cannot reach into the minimum approach distance or use
specified protective measures or work methods. OSHA addresses EEI's
concerns with these proposed provisions later in this section of the
preamble.
Finally, OSHA addresses some confusion expressed by commenters
during the rulemaking about whether
[[Page 20426]]
the ergonomic component of the minimum approach distance should be used
in determining whether a line worker is exposed to phase-to-phase or
phase-to-ground voltage (Tr. 1060-1061, 1076-1077).
As noted earlier in this section of the preamble, under the summary
and explanation for final Sec. 1926.97(c)(2)(i) and Table E-4, the
final rule permits insulating protective equipment to be rated for
phase-to-ground voltage if ``[t]he electric equipment and devices are
insulated . . . so that the multiphase exposure on a grounded wye
circuit is removed'' (Table E-4, Note 1).\192\ Existing Sec. 1910.137
and Table I-5 contain the same provisions. OSHA policy with regard to
whether there is multiphase exposure under existing Sec. 1910.137 is
discussed in a September 27, 2005, letter of interpretation to Mr.
Edwin Hill, IBEW President.\193\ This letter explains how to determine
whether multiphase exposure exists:
---------------------------------------------------------------------------
\192\ Note that the word ``exposure'' in the note relates to the
maximum voltage that can appear across the insulation, and not to
whether an energized part is ``exposed.'' The definition of
``exposed'' in final Sec. 1926.968 applies only to the use of that
term in Subpart V. It does not apply to final Sec. 1926.97.
\193\ This letter is available on OSHA's Web site at: http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=25133.
Phase-to-phase exposure exists whenever it is foreseeable that
an employee or the longest conductive object he or she may handle
can simultaneously breach the electrical components of the MADs of
live parts energized at different phase potentials, taking into
account such factors as: The nature of the work being performed, the
physical configuration and spacing of the conductors, the proximity
of grounded objects or other circuit conductors, the method of
approach to the conductors, the size of the employee, the tools and
equipment being used, and the length of the conductive object. In
addition, the employer must always consider mechanical loads and
other conditions, such as wind and ice, that could cause a conductor
to move or a support to fail. Notably, the determination of whether
or not multiphase exposure exists is made without regard to
insulation that may be covering the live part or the employee. This
is because the exposure determination must be made prior to the
selection of insulation in order to ensure that the insulation
selected is adequate to protect employees from the electrical
hazard. Moreover, it must be noted that phase-to-phase exposure
involves not only the hazard of electric shock to the employee, but
also arc flash and arc blast hazards from phase-to-phase contact of
conductive objects, such as could occur if an employee dropped a
conductive object onto or within the electrical components of the
MADs of live parts energized at different phase potentials.
[Figures] illustrating when phase-to-phase exposure exists can be
---------------------------------------------------------------------------
found at the conclusion of this letter. . . .
Figure 3 and Figure 4 are the figures from that letter:
[GRAPHIC] [TIFF OMITTED] TR11AP14.001
[[Page 20427]]
[GRAPHIC] [TIFF OMITTED] TR11AP14.002
The 0.61-meter ergonomic component of the minimum approach distance
is labeled ``2 feet'' in these figures. As can be seen from the
explanation and figures in the letter of interpretation, the ergonomic
component of the minimum approach distance has no bearing on whether
there is multiphase exposure. The rating required for the insulating
protective equipment installed on the phase conductors depends on the
electrical component of the minimum approach distance (which, in turn,
depends on the voltage on the power line, as discussed later in this
section of the preamble), the distance between the phase conductors,
and the reach of the employee and any conductive object he or she may
handle while working. As noted in the letter to Mr. Hill, when
multiphase exposure exists, the insulating protective equipment used to
remove multiphase exposure must be rated for the phase-to-phase voltage
at a minimum.\194\ In addition, the preamble to the 1994 Sec. 1910.269
rulemaking noted that ``until the multiphase exposure has actually been
removed, the phase-to-phase voltage remains the maximum use voltage''
(59 FR 4328). After the insulating protective equipment covering the
conductors not being worked on is in place, the rubber insulating
gloves and sleeves need only be rated for the phase-to-ground voltage.
This is current OSHA policy under existing Sec. Sec. 1910.137 and
1910.269 and will continue to be the policy of the Agency under this
final rule.
---------------------------------------------------------------------------
\194\ It should be noted that the insulating values of two
insulating materials in series are not additive (Exs. 0041, 0532;
269-Ex. 60). At least one layer of insulation must be rated for the
maximum voltage for the exposure.
---------------------------------------------------------------------------
The electrical component of MAD--general. The differences between
the minimum approach distances under existing Sec. 1910.269 and the
minimum approach distances under this final rule are the result of
changes in the way the Agency is calculating the electrical components
of the minimum approach distances. As described previously, this final
rule adopts the ergonomic components of the minimum approach distances
used in existing Sec. 1910.269. In addition, as explained later in
this section of the preamble, the number of variables (such as
elevation, maximum transient overvoltage, type of exposure, and type of
insulating medium) involved in determining the appropriate minimum
approach distance in any particular set of circumstances makes setting
minimum approach distances exclusively by means of tables unmanageable.
This approach would require one set of tables for each potential set of
variables. Consequently, the final rule requires the employer to
establish an appropriate minimum approach distance based on equations
that OSHA is adopting in Table V-2. The final rule also contains a
table, Table V-5, that specifies alternative minimum approach distances
for work done at elevations not exceeding 900 meters (3,000 feet) for
system voltages of 72.5 kilovolts and less. Finally, Appendix B to
final subpart V contains tables of minimum approach distances, for
varying maximum transient overvoltages for system voltages above 72.5
kilovolts, that employers may use for work done at elevations not
exceeding 900 meters.
Some rulemaking participants questioned the need for any changes to
the minimum approach distances in existing Sec. 1910.269. (See, for
example, Exs. 0227, 0545.1, 0551.1, 0552.1; Tr2. 71.) For instance, Mr.
Charles Kelly with EEI testified:
[U]nder Sections 3(8) and 6(b) of the Occupational Safety and
Health Act, as long interpreted by the Supreme Court, OSHA [is]
required to show that the change[s] in the clearance distances are,
as a matter of substantial evidence, reasonably necessary to protect
employees, and that they would reduce or eliminate a significant
risk for employees.
As several people have stated previous to our testimony, we are
not aware that the existing MAD distances, even though they may have
been mathematically incorrect for decades, have shown to be unsafe
in that they have contributed to accidents or placed employees at
substantial risk of harm. We doubt seriously that a desire to make a
technical mathematical correction is enough to satisfy this
requirement. [Tr2. 71-72]
IBEW also maintained that the minimum approach distances in existing
Sec. 1910.269 are adequate:
It is important to look at how the use [of] MAD values,
regardless of the origin and year of publication, have protected
workers performing tasks in the vicinity of energized power lines.
The IBEW regularly reviews accidents occurring in the electric
utility industry. We cannot remember a single accident caused by
inadequate MAD values. OSHA 1910.269 MAD values have proven to
protect workers as they were intended to do. The obvious question
then is why change successful MAD values? Based on industry
performance, we do not see why changes are necessary. [Ex. 0551.1]
[[Page 20428]]
As OSHA explained in Section II.D, Significant Risk and Reduction
in Risk, earlier in this preamble, the Agency need not make hazard-
specific or provision-specific risk findings. In any event, the Agency
concludes that the electric-shock hazards faced by employees performing
electric power generation, transmission, and distribution work are
serious and significant and that the changes to the minimum approach-
distance provisions in this final rule are reasonably necessary and
appropriate to reduce a significant risk to employees.
OSHA finds that employees are being injured by the dielectric
failure of air (that is, sparkover) between them (or a conductive
object they are handling) and conductive objects at a different
potential. It is widely recognized that electric current can arc over
distances and that it is necessary only to come too close to, rather
than contact, an energized object to sustain an electric shock. In
fact, some of the accidents in the record occurred when an employee
brought a conductive object or himself or herself too close to an
energized part and electric current arced to the object or employee
(Exs. 0002,\195\ 0003 \196\).
---------------------------------------------------------------------------
\195\ See, for example, the five accidents described at http://www.osha.gov/pls/imis/accidentsearch.accident_detail?id=908012&id=170220602&id=564740&id=14496384&id=14418321.
\196\ See, for example, the three accidents described at http://www.osha.gov/pls/imis/accidentsearch.accident_detail?id=200000453&id=201350485&id=596304.
---------------------------------------------------------------------------
The Agency does not believe that it is necessary to show that the
specific minimum approach distances in the existing standards have led
to accidents. Instead, it is only necessary to show that the
probability of sparkover at the worksite, given the existing minimum
approach distances, is significant. The sparkover voltage between two
objects at different potentials is recognized as following a normal
distribution (Ex. 0532). The withstand voltage for an air gap between
two objects at different potentials is three standard deviations below
the statistical mean sparkover voltage. This represents approximately a
1 in 1,000 probability that the air gap will fail dielectrically and
spark over.\197\ The withstand distance is the distance between two
objects corresponding to a given withstand voltage. (In other words,
the withstand distance is the shortest distance between two objects
that will spark over at a given voltage approximately one time in
1,000.) Consensus standards have based the electrical component of the
minimum approach distance on the withstand distance corresponding to
the maximum voltage that can occur at the worksite. (See, for example,
Exs. 0076, 0077, 0532, 0533.) When the electrical component of the
minimum approach distance is less than the withstand distance for the
maximum voltage at the worksite, the probability of sparkover is
greater than 1 in 1,000. OSHA, therefore, concludes that employees are
at significant risk of injury whenever the electrical component of the
minimum approach distance is less than the withstand distance for the
maximum voltage that can occur at the worksite. As explained in detail
later in this section of the preamble, several of the minimum approach
distances contained in the existing OSHA standards and in the proposed
rule represent a significant risk of injury under this criterion.
---------------------------------------------------------------------------
\197\ The probability of sparkover at the withstand voltage is
0.14 percent or 1.4 in 1,000.
---------------------------------------------------------------------------
The electrical component of MAD--tools and conductive objects in
the air gap. The methodology used to develop the proposed minimum
approach distances, which were based on the 2002 NESC, did not account
for tools in the air gap. As noted in the 2009 reopening notice, the
presence of an insulated tool in the air gap reduces the air gap's
dielectric strength (74 FR 46961). IEEE Std 516-2009 (Ex. 0532)
generally provides two values for the electrical component of the
minimum approach distance: One in air (called MAID \198\) and one with
a tool in the air gap (called MTID \199\). However, that consensus
standard does not provide minimum tool-insulation distances for either:
(1) Any exposures (phase-to-ground or phase-to-phase) at voltages of
72.5 kilovolts or less or (2) phase-to-phase exposures at voltages of
more than 72.5 kilovolts. In the 2009 reopening notice, the Agency
requested comments on whether any of the minimum approach distances in
the final rule should be based on minimum tool-insulation distances
rather than minimum air-insulation distances. A similar question was
raised in the 2008 reopening notice.
---------------------------------------------------------------------------
\198\ MAID is the minimum air-insulation distance.
\199\ MTID is the minimum tool-insulation distance.
---------------------------------------------------------------------------
Scenario 1--exposures at 72.5 kilovolts and less. Rulemaking
participants generally opposed basing minimum approach distances for
voltages of 72.5 kilovolts and less on minimum tool distances. (See,
for example, Exs. 0543.1, 0545.1, 0548.1, 0550.1; Tr2. 88.) For
instance, Pike Electric commented, ``Pike utilizes proper rubber
protective cover-up at . . . voltages [of 72.5 kilovolts and lower].
This technique would eliminate the hazard of employee exposure to
energized lines and equipment, so there is no need to utilize a MAD
approach using tool insulation distances'' (Ex. 0543.1). EEI and
Southern Company argued that only one set of minimum approach distances
is necessary for work on systems operating at voltages of 72.5
kilovolts and less because, based on IEEE Std 516-2009, minimum tool
distances and minimum air distances are the same at those voltages
(Exs. 0545.1, 0548.1). American Electric Power maintained that, for
voltages at or less than 72.5 kilovolts, MAD has not been based on
minimum tool distances in the past, so doing so now could potentially
confuse workers (Ex. 0550.1).
IEEE Std 516-2009 defines MTID as ``the required undisturbed air
insulation distance that is needed to prevent a tool flashover at the
worksite during a system event that results in the maximum anticipated
TOV'' (Ex. 0532). Although the specified minimum tool distances in IEEE
Std 516-2009 are the same as the corresponding minimum air-insulation
distances for voltages of 72.5 kilovolts and less, the consensus
standard includes the following disclaimer in Section 4.5.2.1: ``The
MTID for ac and dc line-to-line voltages at and below 72.5 kV has not
been determined. Industry practices normally use an MTID that is the
same as or greater than the MAID'' (id.; emphasis added). Thus, IEEE
Std 516-2009 does not indicate that the minimum air- and tool-
insulation distances are the same, nor does it contain tables with
minimum tool-insulation distances for voltages of 72.5 kilovolts and
less. According to IEEE Std 516-2009, electrical testing at higher
voltages indicates that the dielectric strength of an air gap is lower
when an insulating tool is present across the gap or when a conductive
object is present within the gap (id.). OSHA concludes that minimum
approach distances for voltages of 72.5 kilovolts and less should be
conservative enough so that the gap will withstand the electric
potential across it even if a tool bridges the gap or a conductive
object is present within it. As explained later in this section of the
preamble, the final rule specifies minimum approach distances that meet
this criterion. Because the final rule does not adopt separate minimum
approach distances for exposures with and without tools at 72.5
kilovolts and less, the concerns about confusion at these voltages are
unfounded.
Scenario 2--phase-to-ground exposures at more than 72.5 kilovolts.
Some commenters maintained that the final rule should follow the
practice of
[[Page 20429]]
the 2007 NESC and base minimum approach distances for phase-to-ground
exposures at voltages of 72.6 kilovolts and higher on the minimum tool
distance. (See, for example, Exs. 0519, 0521, 0528, 0543.1.) For
instance, Mr. Brian Erga with ESCI commented:
The MAD for voltages above 72.6 kV should be based on the
minimum tool distance as published in the 2007 NESC. Live line work
is conducted with tools, workers and equipment within the electrical
field of energized lines and equipment[,] and the minimum tool
distance is correct information to be provided to the industry. [Ex.
0521]
Others suggested that the final rule include two sets of minimum
approach distances for phase-to-ground exposures at voltages exceeding
72.5 kilovolts: One each for work performed with and without tools in
the air gap. (See, for example, Exs. 0545.1, 0548.1, 0575.1; Tr2. 88.)
For instance, Mr. Charles Shaw with Southern Company commented:
In the proposed rule, OSHA is using minimum air insulation
distances when a line worker is using a tool in the air gap.
Allowing the minimum air insulation distance plus an inadvertent
movement factor to be used as the live-line tool distance is an
incorrect interpretation of the science behind the IEEE method. At a
minimum, the note in the [Subpart] V and [Sec. 1910.269] tables
that states that the referenced distances are for ``live-line tool
distances'' should be removed since they are not.
However, we recommend that OSHA include two sets of minimum
approach distances for phase to ground work on voltages above 72.5
kV, one for work performed without tools in the air-gap and one for
work performed with tools in the air gap. These distances should be
based on MAID and MTID respectively using the method shown in IEEE
516-2009. [Ex. 0548.1]
Some commenters suggested that separate sets of air and tool
minimum approach distances might be necessary for phase-to-ground
exposures above 72.5 kilovolts because basing minimum approach
distances solely on minimum tool distances could prevent employees from
performing activities such as climbing and inspection with lines or
equipment energized. (See, for example, Ex. 0549.1, 0573.1; Tr2. 54-
55.)
EEI submitted evidence that approximately 23 percent of the
insulators installed on transmission systems, and 25 percent of
insulators installed on systems operating at 345 kilovolts and more,
would be too short to accommodate the IEEE standard's minimum approach
distances for tools (Ex. 0575.1). EEI noted that ``there have been no
reported safety events or flashovers with the current insulator
lengths'' \200\ and maintained that using MAD for tools would force
employers to perform routine inspections under deenergized conditions
(id.).
---------------------------------------------------------------------------
\200\ OSHA is unsure what EEI meant by ``safety event,'' but
assumes that it means accident or near miss.
---------------------------------------------------------------------------
Minimum approach distances in the 2007 NESC and IEEE Std 516-2009
are generally based on a substantial body of electrical tests run on
air gaps with and without objects in them (Ex. 0532; Tr2. 38).\201\ A
1968 IEEE Committee Report entitled ``Recommendations for Safety in
Live Line Maintenance,'' and a 1973 IEEE Committee Report entitled
``Live-Line Maintenance Methods,'' presented a formula, based on that
testing, for calculating minimum safe distances for energized power
line work (Exs. 0556, 0558). This formula, which is given later in this
section of the preamble, generally provides for a 10-percent increase
in distance to account for the presence of tools across the air gap.
\202\
---------------------------------------------------------------------------
\201\ As noted later in this section of the preamble, the 2012
NESC distances are identical to corresponding minimum approach
distances in IEEE Std 516-2009.
\202\ The equation included a factor, C2, equal to
``1.1, composed of 1.06 for live-line tool-to-air withstand distance
ratio plus intangibles'' (Ex. 0556).
---------------------------------------------------------------------------
IEEE Std 516-2009, in Section 4.7.9.2, recognizes the effect that a
large floating object has on minimum approach distances:
When a large floating object, not at ground or the conductor
potential, is in the air gap, additional compensation may be needed
to provide for the size and location of the floating object in the
air gap. [Ex. 0532]
IEEE Std 516-2009 accounts for this effect by reducing the withstand
voltage by 10 percent for phase-to-phase exposures on systems operating
at more than 72.5 kilovolts (id.). This approach effectively increases
the minimum approach distance by at least 10 percent. Although IEEE Std
516-2009 applies a floating-object correction factor only to phase-to-
phase exposures, the effect (as noted in the quoted passage) also
applies to phase-to-ground exposures.
In light of the comments received and the other information in the
record, OSHA concludes that, for phase-to-ground exposures at voltages
of more than 72.5 kilovolts, basing minimum approach distances on
minimum air-insulation distances will not provide sufficient protection
for employees when insulated tools or large conductive objects are in
the air gap. Minimum air-insulation distances are based on testing air
gaps with only air between the electrodes, which does not account
adequately for the presence of tools (Ex. 0532). Therefore, the
provisions adopted in the final rule ensure that minimum air-insulation
distances are applied only when air alone serves as the insulating
medium protecting the worker. For phase-to-ground exposures at voltages
of more than 72.5 kilovolts, Table V-2 requires employers to establish
minimum approach distances that are based on the minimum air-insulation
distance ``for phase-to-ground exposures that the employer can
demonstrate consist only of air across the approach distance.''
Otherwise, the minimum approach distances for these exposures must be
based on the minimum tool-insulation distance.
Scenario 3--phase-to-phase exposures at more than 72.5 kilovolts.
The third and final scenario the Agency has to address is the presence
of tools or other insulation across a phase-to-phase air gap at
voltages of more than 72.5 kilovolts. Rulemaking participants
maintained that, for voltages of more than 72.5 kilovolts, minimum
approach distances based on minimum tool-insulation distances are
unnecessary because the phase-to-phase air gap is rarely, if ever,
bridged by an insulated tool. (See, for example, Exs. 0545.1, 0548.1,
0550.1, 0551.1; Tr2. 89, 157). For instance, Dr. Randy Horton,
testifying on behalf of EEI, stated:
[EEI is] unaware of any live-line working scenario situations
above 72.5 kV where the phase-to-phase air gap is bridged by live-
line tool. Most work practices are developed to work on only one
phase at a time per structure, phase to ground. [Tr2. 89]
Thus, the rulemaking record indicates that, for voltages over 72.5
kilovolts, tools or other objects infrequently, if ever, bridge the gap
between two phases. Considering how rare the practice of spanning the
air gap is, OSHA decided against adopting generally applicable minimum
approach distances that account for tools in the gap for phase-to-phase
exposures at these voltages. However, there is still a need to account
for conductive bodies in the air gap in the limited circumstances in
which they are present, for example, when an employee is moving between
phases in an aerial lift. Therefore, OSHA is including provisions in
the final rule ensuring that the phase-to-phase minimum approach
distance for voltages over 72.5 kilovolts takes account of any objects
that will be present in the air gap. Table V-2 requires the employer to
establish minimum approach distances that are based on the minimum air-
insulation distance as long as ``the employer can demonstrate that no
insulated tool spans
[[Page 20430]]
the gap and that no large conductive object is in the gap.''\203\
---------------------------------------------------------------------------
\203\ Two variables in the equation for minimum approach
distances account for tools or large conductive bodies in the air
gap. The variable C is 0.01 for exposures that the employer can
demonstrate are with air only between the employee and the energized
part if the employee is at ground potential or between the employee
and ground if the employee is at the potential of the energized
part, or 0.011 otherwise. Because it is rare that tools or large
conductive bodies are in the air gap between phases, employers
should not have difficulty making this demonstration for phase-to-
phase exposures. The second variable, the saturation factor, a, is
calculated differently when an insulated tool spans the gap or a
large conductive object is in the gap. For phase-to-phase exposures,
the final rule requires this factor generally to be based on air
only in the gap.
---------------------------------------------------------------------------
The electrical component of MAD--maximum transient overvoltages.
Existing Sec. 1910.269 and OSHA's 2005 proposal specified maximum
transient overvoltages of 3.0 per unit for voltages up to 362
kilovolts, 2.4 per unit for voltages in the 550-kilovolt range (500 to
550 kilovolts, nominal\204\), and 2.0 per unit for voltages in the 800-
kilovolt range (765 to 800 kilovolts, nominal). These are known as
``industry-accepted values'' of maximum per-unit overvoltage (Ex.
0532). The IEEE committee and the electric utility industry, as
evidenced by the 1993 through 2002 NESC and pre-2003 editions of IEEE
Std 516, believed that these were the highest transient overvoltages
possible. However, the 2007 NESC and IEEE Std 516-2009 recognize that
even higher maximum per-unit transient overvoltages can exist (Exs.
0532, 0533).\205\ Therefore, OSHA requested comments on how, if at all,
the final rule should address the possibility of higher maximum
transient overvoltages.
---------------------------------------------------------------------------
\204\ Table R-7 and Table R-8 in existing Sec. 1910.269 and
Table V-1 and Table V-2 in existing subpart V list the upper bound
of this voltage range as 552 kilovolts. Table R-6 in existing Sec.
1910.269 lists the upper bound of this voltage range as 550
kilovolts, which is the correct value (Ex. 0532). The final rule
uses 550 kilovolts as the upper bound of this voltage range.
\205\ Table 441-2 of the 2007 NESC contains minimum approach
distances with maximum transient overvoltages higher than the
industry-accepted values, though the higher values do not apply when
certain conditions are met (Ex. 0533). Section 4.7.4.3 of IEEE Std
516-2009 lists the industry-accepted values for maximum transient
overvoltages. However, it also states that, if certain assumptions
about the operation of the system are not met, ``the values listed
in the table may not be valid, and an engineering evaluation should
be performed to determine [the maximum per-unit transient
overvoltage]'' (Ex. 0532).
---------------------------------------------------------------------------
No rulemaking participants disputed that overvoltages beyond those
accounted for in the proposed standard were possible. Pike Electric
recommended that minimum approach distances be calculated for the
highest possible transient overvoltage (Ex. 0543.1). IBEW suggested
that, if the higher per-unit overvoltage factors are included, specific
instructions for using those higher factors also should be included in
the final rule (Ex. 0551.1; Tr2. 158).
Electric utility representatives argued that, even though higher
overvoltages are possible, their industry does not widely recognize
that higher overvoltages exist. (See, for example, Exs. 0545.1, 0548.1,
0549.1, 0550.1; Tr2. 90-93.) These rulemaking participants urged OSHA
to base the final standard on the existing industry-accepted values
upon which the proposal was based (id.). For example, Southern Company
stated, ``Although IEEE 516-2003 and IEEE 516-2009 recognize the
possibility of higher surge values, the concept that such surges exist
is not widely accepted in the Industry'' (Ex. 0548.1).
Dr. Randy Horton, testifying on behalf of EEI, explained this
position as follows:
Over the years, none of the field-measured over-voltages on
actual operating systems has produced results which exceed the
industry accepted T values (transient overvoltage values). The
documentation of these measurements and of numerous simulations,
encompassing all current transmission operating voltages, and the
results have consistently supported the accepted T values. [Tr2. 90]
However, Dr. Horton acknowledged that one utility (Bonneville Power
Administration, or BPA) measured overvoltages above 3.0 per unit on one
of its 230-kilovolt circuits (id.). As he noted, BPA tested that
circuit in response to sparkovers on rod gaps placed on the circuit to
protect it from lightning strikes (Tr2. 90-91). Dr. Horton argued that
the measured overvoltages on that circuit were unrealistic because: (1)
The gaps on the circuit flashed over at overvoltages less than 3.0 per
unit during testing; (2) the circuit breaker characteristics and
performance, including pole-closing spans and breaker current, were
unrealistic; and (3) monitoring inaccuracies could have occurred,
leading to measurements that were too high. (See, for example, Exs.
0546.1, 0575.1; Tr2. 90-92.) EEI recommended adhering to the industry-
accepted overvoltage values. However, it noted that, if OSHA elected to
account for the values of maximum per-unit overvoltage from the BPA
measurements, the final rule should just include a footnote similar to
that contained in IEEE Std 516-2009, noting: ``At 242 kV, it is assumed
that automatic instantaneous reclosing is disabled. If not, the values
shown in the table may not be valid, and an engineering evaluation
should be performed to determine `T' '' (Ex. 0545.1; Tr2. 93).
In its posthearing submission, EEI offered evidence suggesting that
the industry-accepted values of maximum per-unit transient overvoltage
are reasonable (Ex. 0575.1). In this submission, EEI reported results
of testing on several other systems of varying voltages, none of which
exceeded the industry-accepted values. EEI explained:
The field tests were conducted for energization, reclosings and
with or without shunt reactors. Attempts were made to obtain the
worst possible overvoltages during the field tests. For all cases,
listed above, the expected overvoltages, now, would be lower since
the system has matured and at each bus, the source strength has
increased considerably. . . .
The IEEE Transactions Papers on the aforementioned information
are provided below. Additional IEEE Transactions Papers references
are attached for switching overvoltage field tests on system voltage
levels of 220 kV, 345 kV and 500 kV by various power companies,
including American Electric Power. All papers show that:
Without breaker closing resistors, the maximum
switching overvoltages do not exceed 3.0 pu.
With closing resistor, the maximum switching
overvoltages are near 2.0 pu. And, with control closings the maximum
switching overvoltages do not exceed 1.6 pu.
Calculated overvoltages are generally much higher than
those by the field measured values . . . [Id.]
EEI also pointed to an excerpt from International Electrotechnical
Commission (IEC) Standard 61472 as evidence that higher maximum
transient overvoltages are possible, but unlikely (id.). This IEC
excerpt reads as follows:
B.2.2 Overvoltages under abnormal conditions.
Among the possible abnormal conditions which can lead to very
high overvoltages, restrikes between the contacts of circuit
breakers during opening is considered, and in particular the
following conditions may be of concern:
-single or three-phase opening of no load lines;
-three-phase clearing of line-to-earth fault.
Such abnormal behaviour may lead to overvoltage amplitudes of
the same order or even higher than those under three-phase
reclosing.
However, the restrike probability of circuit breakers is
normally low, and is very low for the modern circuit breaker. So the
low probability of these events is not such as to influence the
probability distribution of the family considered (opening or fault
clearing) and thus the relevant Ue2 value. [Id.]
OSHA understands that the information in the record pertaining to
maximum transient overvoltages applies basically to voltages over 72.5
kilovolts.
[[Page 20431]]
IEEE Std 516-2009 does not include separate overvoltage factors for
voltages of 72.5 kilovolts and less (Ex. 0532). For voltages of 72.5
kilovolts and less, IEEE Std 516-2009 relies on a maximum transient
overvoltage of 3.0 per unit and does not recognize the possibility of
higher values. Section 4.8.1d of IEEE Std 516-2009 states, ``Shunt-
connected devices, such as transformers, and reactors will tend to
reduce the trapped charge on the line and, therefore, limit the
overvoltages due to reenergization'' (id.). Such shunt-connected
devices are not only pervasive on systems of 72.5 kilovolts and less,
but are a necessary part of the distribution systems that form the
overwhelmingly predominant portion of these systems (see, for example,
269-Ex. 8-13). Even for the 45- and 69-kilovolt systems that are
sometimes used in transmission circuits, there is no evidence in the
record that maximum transient overvoltages exceed 3.0 per unit.
Consequently, the final rule adheres to a maximum transient overvoltage
of 3.0 per unit for systems with a nominal phase-to-phase voltage of
72.5 kilovolts or less. OSHA calculated the values in Table V-3, which
are the electrical components of the minimum approach distances, using
a maximum transient overvoltage of 3.0 per unit.
For voltages of more than 72.5 kilovolts, no rulemaking participant
disputed the fact that maximum transient overvoltages based on
engineering calculations can exceed those on which the proposed rule
was based. (See, for example, Exs. 0532, 0575.1.) It also is clear that
maximum transient overvoltages exceeding industry-accepted values are
possible as IEEE Std 516-2009, IEC Standard 61472, and the BPA report
show. (id.) The evidence in the record indicates that most systems do
not, however, exceed the industry-accepted values on which the proposal
was based. (See, for example, Exs. 0545.1, 0549.1, 0575.1; Tr2. 90-93.)
This is the major argument relied on by the commenters that urged OSHA
to base the final rule on industry-accepted values of maximum transient
overvoltage (id.).
The Agency considered all of the comments and record evidence on
this issue and concluded that the arguments against relying on BPA's
report are not strong enough to justify ignoring it for purposes of
this final rule. First, EEI argued that, in the BPA scenario, during
testing the gaps on the circuit flashed over at overvoltages less than
3.0 per unit (see, for example, Tr2. 91). The magnitude of the
overvoltage during these gap sparkovers is irrelevant. In one series of
tests, the measured overvoltages for two of the tests in which three
gaps arced over were lass than 3.0 per unit. However, measured
overvoltages on at least one phase exceeded 3.0 per unit during 10 of
the tests, including both tests involving sparkovers.\206\ For this
circuit, the testing found overvoltages as high as 3.3 per unit. The
BPA report explained:
---------------------------------------------------------------------------
\206\ The measured overvoltages on the phases with gap
sparkovers were under 3.0 per unit, but the measured overvoltages on
the phases without gap sparkovers during the same tests exceeded 3.0
per unit. For example, during test 5-25, the overvoltage on the
phase with the gap sparkover was 2.83 per unit, and the overvoltage
on one of the other two phases was 3.30 per unit.
Rod gap flashovers occurred . . . during the last two tests of
[one test series]. . . . [S]ignificantly higher overvoltages were
measured on [the] phases [with flashovers] during other tests in the
series, but the gaps did not flash over. This demonstrates the
highly statistical nature of . . . gap flashover . . . . [Ex.
---------------------------------------------------------------------------
0575.1]
Thus, that the measured overvoltages for the sparkovers were less than
3.0 per unit has no bearing on whether overvoltages exceeding 3.0 per
unit are possible.
Second, EEI's argument that the circuit breaker characteristics
were unrealistic are unpersuasive. EEI argued that, because ``[t]he
field tests were conducted with individual phase breaker pole
control,'' the pole-closing span \207\ was exceedingly large and
unrealistic (id.). Although BPA controlled the opening and closing of
the circuit breakers during testing to ``measure overvoltage levels
that can occur on a long transmission line during high speed
reclosing,'' there is no indication in the BPA report that it varied
the closing spans for the individual poles on the circuit breakers
(id.). The report states:
---------------------------------------------------------------------------
\207\ The circuit-breaker pole-closing span is the maximum
closing time difference between the phases.
[The relevant test series] involved three-phase reclosing into
trapped charge on the Big Eddy-Chemewa 230-kV line. Breaker opening
was controlled and synchronized to generate the same polarity and
magnitude trapped charge on each phase for each test shot. Testing
began by switching from the Big Eddy end, varying the closing time
of the breaker uniformly over a complete 60 Hz cycle by increments
of 18 electrical degrees (\1/20\ cycle). After these 20 tests, 4
additional tests were performed in an attempt to generate a maximum
possible overvoltage. This same procedure was then repeated from the
---------------------------------------------------------------------------
Chemewa end of the line. [Id.]
Thus, it appears that BPA took measures to synchronize the switching of
the poles in each circuit breaker. The report mentioned that the
circuit breaker at the Big Eddy end was ``constructed with each phase
in its own tank'' (id.). The pole-closing span for this circuit breaker
was 3.7 milliseconds. The circuit breaker at Chemewa was ``constructed
with all three contacts in a single tank'' (id.). The pole-closing span
for this circuit breaker was 0.24 milliseconds, significantly shorter
than the pole-closing span for the Big Eddy circuit breaker. Measured
overvoltages exceeded 3.0 per unit during tests with switching
performed at both locations. Thus, OSHA concludes that pole-closing
spans did not contribute to measured overvoltages exceeding 3.0 per
unit during BPA testing. BPA did not indicate that the pole-closing
span for either circuit breaker was unusual, and EEI did not submit any
evidence that would demonstrate that circuit breakers of any type of
construction generally have shorter pole-closing spans. Consequently,
the Agency concludes that, even if the pole-closing span did contribute
to the measured overvoltages in BPA's testing, circuit breakers in
other installations could have similarly long pole-closing spans with
correspondingly high maximum transient overvoltages.
Furthermore, although the difference in time taken for each pole to
close might affect the phase-to-phase overvoltage, that value was not
measured during the BPA tests. Because pole-closing spans only affect
the offset between phases and should have no substantial effect on the
behavior of the transient voltage on a single phase, long pole-closing
spans should have little effect on phase-to-ground overvoltages (that
is, the overvoltage on a single phase). As explained later, the report
clearly states that the main cause of the unexpectedly high maximum
transient overvoltages was ``prestrike.'' OSHA, therefore, concludes
that prestrike, not pole-closing spans, were the primary cause of the
high maximum transient overvoltages.
EEI, through Dr. Horton, also expressed concern about the
performance of the circuit breakers in the BPA report, because the
circuit breaker current showed evidence of prestrikes (Tr2. 91).
Restrike and prestrike may occur during the opening of circuit
breakers. The current and voltage across the contacts of a circuit
breaker vary with time. When the contacts are closed, the voltage
across them is very close to zero, and the current oscillates at 60
cycles per second. When the contacts are open, the voltage oscillates,
and the current is zero. As the contacts of a circuit breaker open or
close, current can arc across them. When the current drops to zero,
[[Page 20432]]
the arcing stops. However, if the voltage across the contacts from
reflected traveling waves exceeds the dielectric strength of the gap
between the contacts, arcing can recur. Arcing that occurs after the
initial arc is extinguished as the circuit breaker is opening is called
``restrike.'' Arcing that occurs as the contacts close, but before they
are touching, is called ``prestrike.''
Whether a circuit breaker is subject to restrikes or prestrikes is
dependent on the design of the circuit breaker, maintenance of the
circuit breaker, and the characteristics of the circuit to which the
breaker is connected. Prestrikes and restrikes can lead to high
transient overvoltages that can damage equipment. Therefore,
manufacturers design circuit breakers to resist restrikes and
prestrikes. However, the probability that these events will occur can
be affected by maintenance and circuit design. Poor circuit breaker
maintenance can lead to longer pole-opening times and can increase the
probability that prestrike or restrike will occur. Similarly, circuit
designs can shorten the time in which traveling waves reach the breaker
contacts, which also can increase the probability of prestrikes or
restrikes.
The circuit breakers that were the subject of BPA's testing
exhibited prestrikes during testing (Ex. 0575.1). Commenting on this,
Dr. Horton stated:
The line breaker performance appears suspicious. The breaker
current shows pre-strikes with abrupt interruptions and subsequent
re-ignitions [Tr2. 91]
However, the BPA report explained why the prestrikes occurred:
During Test Series V, it was found that the sending end can
experience significant overvoltages that were previously assumed to
occur only out on the line or at the receiving end. During breaker
prestrike, a current wave (initiated by arcing across the contacts)
travels down the line to the receiving (open) end where it is
reflected. As the reflected wave travels back toward the sending end
of the line, it reduces the current to near zero along the line.
When the reflected current wave reaches the sending end of the line,
it creates a current zero and allows the prestrike arc between the
breaker contacts to extinguish, isolating the line voltage from the
bus voltage. After the arc extinguishes, the line voltage often
increases due to traveling voltage waves that continue to be
reflected from the receiving end. The voltage across the breaker
then builds up until another prestrike occurs. The next prestrike
occurs at a lower breaker cross voltage because the breaker contacts
are closer together. In Test Series V, the majority of breaker
closings resulted in only a single prestrike. However, in a few
tests, up to four prestrikes occurred on one phase during a single
closing operation. [Ex. 0575.1]
BPA found this information useful, explaining:
This field test has also provided a considerable amount of data
on 230-kV SF6 breaker prestrikes. Typical characteristics
of the dielectric strength across the breaker contacts have now been
developed and can be used for statistical switching surge studies.
Additional information has also been obtained about another property
of 230-kV SF6 breakers--where the prestrike arc is
extinguished by the traveling current wave during line switching.
The test results show that when the prestrike arc extinguishes, the
voltage at the sending end of a line reaches values that are much
higher than were previously expected. [Id.]
In light of this explanation in the BPA report itself, OSHA
concludes that the existence of prestrikes does not invalidate the BPA
report's findings. In fact, the prestrikes were the cause of the
unexpectedly high maximum transient overvoltages. The Agency
anticipates that any workplace where prestrikes occur during switching
operations, particularly during reclosing, can experience similarly
high maximum transient overvoltages.
EEI's third and final concern about the BPA report was that
``inaccuracies in the monitoring system and in the waveform calibration
[could have resulted] in unrealistic over-voltage readings'' (Tr2. 91).
However, there is no evidence in either BPA's report or in OSHA's
rulemaking record that such inaccuracies existed during the BPA tests.
For the foregoing reasons, OSHA does not accept EEI's criticism of
the BPA report and finds that it provides substantial evidence of the
existence of maximum transient overvoltages higher than industry-
accepted values.
IEEE Std 516-2009 does not account for the possibility of circuit-
breaker restrikes. In Section 4.7.4.3, IEEE Std 516-2009 explains its
approach for addressing maximum transient overvoltages, as follows:
(a) At all voltage levels, it is assumed that circuit breakers
are being used to switch the subject line while live work is being
performed. This further assumes that the restrike probability of a
circuit breaker is low and consequently extremely low while a worker
is near the MAD and that it can, therefore, be ignored in the
calculation of T. If devices other than circuit breakers are being
utilized to switch the subject line while live work is being
performed, then the values listed in the table may not be valid, and
an engineering evaluation should be performed to determine T.
(b) At 242 kV, it is assumed that automatic instantaneous
reclosing is disabled. If not, the values shown in the table may not
be valid, and an engineering evaluation should be performed to
determine T. [Ex. 0532]
OSHA has serious concerns about the validity of the assumptions on
which this IEEE standard relies to support its general application of
the industry-accepted values for maximum transient overvoltages.
Indeed, with all the caveats in these paragraphs of the IEEE standard,
it is clear that even the drafters of that standard did not believe in
the universal applicability of its key assumptions. IEEE Std 516-2009
recognizes that switching can be performed using devices other than
circuit breakers and recommends an engineering analysis if such devices
are used. The Agency concludes that the prestrike experience reported
by BPA demonstrates that the occurrence of prestrikes is likely to be a
consequence of the design of the circuit breaker and the circuit
involved, rather than a low probability event for each circuit breaker
on every circuit. The BPA report explained that the occurrence of
prestrikes was influenced heavily by the magnitude of the trapped
charge on the line and the speed of the initial and repeated reflected
traveling wavefronts (Ex. 0575.1). Because the cause of prestrikes and
restrikes are the same, the Agency believes that restrikes are
similarly influenced. In this regard, prestrikes and restrikes are the
same type of event, with prestrikes occurring during circuit breaker
opening and restrikes occurring during circuit breaker closing. Thus,
although the overall probability that circuit breakers in general will
restrike or prestrike may be low, OSHA concludes that the probability
that a particular circuit breaker will restrike or prestrike may be
high enough that it cannot be ignored.
Additionally, neither the IEEE standard nor Dr. Horton explained
why the IEEE committee chose to base maximum transient overvoltage on
the 2-percent statistical switching overvoltage expected at the
worksite, which is a probability-based assessment, while ignoring the
probability of restrikes (Ex. 0532).\208\ After all, if the probability
is low enough, then the potential for restrikes will not have a
significant effect on the 2-percent statistical switching overvoltage.
On the other hand, if it is high enough, then the 2-percent statistical
switching overvoltage will increase.
---------------------------------------------------------------------------
\208\ Section 4.7.4.2 of IEEE Std 516-2009 reads, in part, ``The
line-to-ground maximum anticipated per-unit TOV (T) for live work is
defined as the ratio of the 2% statistical switching overvoltage
expected at the worksite to the nominal peak line-to-ground voltage
of the system.''
---------------------------------------------------------------------------
In response to EEI's recommendation to permit employers to use
industry-accepted values in accordance with IEEE Std 516-2009, OSHA
concludes
[[Page 20433]]
that this alternative does not adequately account for higher maximum
transient overvoltages. Section 4.7.4.3b of IEEE Std 516-2009 indicates
that the industry-accepted values are valid only when reclosing is
blocked at 242 kilovolts (Ex 0532). Although the BPA testing was
performed on a 242-kilovolt circuit, there is no evidence in the record
indicating that maximum transient overvoltages higher than the
industry-accepted values are limited only to this voltage. In addition,
---------------------------------------------------------------------------
the IEEE standard, in Section E.2 of Appendix E, notes:
If restriking of the switching device is included [in the
determination of maximum transient overvoltage], then the resulting
overvoltages are essentially the same as those of reclosing into a
trapped charge. The only difference is the probability of
occurrence. [Id.]
Consequently, even if reclosing is blocked, the maximum transient
overvoltage may still exceed industry-accepted values.
OSHA concludes that it is not in the interest of worker safety to
adopt minimum approach-distance provisions based on the conditions
expected to be present in the workplaces of most, but not all,
employers covered by this final rule. Basing the rule on industry-
accepted values of maximum transient overvoltage, as EEI and other
commenters recommended, would result in some employees not receiving
adequate protection. In the extreme case, in which the maximum
transient overvoltage is 3.5 instead of the industry-accepted value of
3.0, the electrical component of the minimum approach distance would
sparkover nearly 50 percent of the time, rather than 0.1 percent of the
time, at the maximum overvoltage. OSHA designed the minimum approach-
distance provisions in this final rule to protect employees from the
conditions that are present in their specific workplaces. Under the
final rule, employers must select and adhere to minimum approach
distances based on the maximum transient overvoltages present at their
workplaces or base minimum approach distances on the highest maximum
transient overvoltage.
EEI and other commenters noted that IEEE recently established a
working group to examine maximum transient overvoltages and recommended
that OSHA rely on industry-accepted values for these overvoltages until
the committee reports its findings. (See, for example, Exs. 0545.1,
0548.1; Tr2. 92-93.) For instance, Dr. Horton, testifying on behalf of
EEI, stated:
In order to address the possibility of higher surge values, the
General Systems Subcommittee of the IEEE Transmission and
Distribution Committee has recently created a working group entitled
``Field Measured Over-Voltages and Their Analysis'' to determine if
higher surge values actually exist, and if so, what is their upper
limits. This working group is chaired by myself (Dr. Randy Horton of
Southern Company) and is co-chaired by Dr. Albert Keri of American
Electric Power. Numerous experts and utilities from around the world
are involved in this work, and initial findings of the working group
will likely be available in the next 3 to 4 years. Until such time,
it is recommended that the industry accepted values (in other words
T equal to 3 per unit, 2.4 per unit, and 2.0 per unit, corresponding
to 362 kV and below, 363 kV to 550 kV, and 551 kV to 800 kV
respectively) be used as the maximum per unit transient over-voltage
values. [Tr2. 92-93]
The Agency concludes that it is not necessary to wait for the
findings of the new IEEE working group before proceeding with new
minimum approach-distance provisions. The Agency does not believe that
it is necessary to delay action on minimum approach distances until the
IEEE or any other standard-setting organization produces additional
information on this subject. OSHA believes that there is sufficient
information in the record, described earlier in this discussion of
maximum transient overvoltages, to form the basis of a final rule on
minimum approach distances that accurately accounts for the presence,
magnitude, and effect of maximum transient overvoltages. The Agency
concludes that BPA's experience proves the existence of maximum
transient overvoltages higher than the industry-accepted values; and,
although the consensus standards do not fully account for potentially
higher values in their minimum approach distances, the 2007 NESC and
the 2003 and 2009 editions of IEEE Std 516 recognize the existence of
such overvoltages (Exs. 0041, 0532, 0533, 0575.1). Consequently, for
purposes of Table V-6, and Table 7 through Table 14 in Appendix B to
subpart V, the Agency is adopting maximum per-unit transient
overvoltages of 3.5 for systems operating at 72.6 to 420 kilovolts, 3.0
for systems operating at 420.1 to 550.0 kilovolts, and 2.5 for systems
operating at 550.1 to 800 kilovolts. These values are the same values
as the highest maximum transient overvoltages recognized in the 2007
NESC and IEEE Std 516-2009 (Exs. 0532, 0533).
The electrical component of MAD--calculation methods for voltages
up to 72.5 kilovolts. OSHA based the minimum approach distances in
existing Sec. 1910.269 for voltages up to 72.5 kilovolts on ANSI/IEEE
Std 4 (59 FR 4383). Existing Sec. 1910.269 specifies ``avoid contact''
as the minimum approach distance for voltages between 51 and 1,000
volts. To make the revised standards consistent with the 2002 NESC,
OSHA proposed in the 2005 proposal to adopt minimum approach distances
of 0.31 meters (1 foot) for voltages between 301 volts and 750 volts
and 0.65 meters (2 feet, 2 inches) for voltages between 751 volts and
15 kilovolts. The proposal specified ``avoid contact'' as the minimum
approach distance for 51 to 300 volts.
Two commenters objected to the requirement for employees to ``avoid
contact'' with lines energized at 50 to 300 volts (Exs. 0169, 0171).
Mr. Brooke Stauffer with NECA commented, ``The `avoid contact'
requirement on lines energized at 50 to 300 volts is infeasible for
line construction and maintenance, because linemen must contact these
energized lines on a routine basis while doing their work'' (Ex. 0171).
Quanta Services similarly asserted, ``The `avoid contact' requirement
on lines energized at 50 to 300 volts presents a problem because
linemen will contact those lines on a routine basis while doing their
work'' (Ex. 0169).
[[Page 20434]]
These comments do not indicate how employees are contacting
electric conductors and other circuit parts energized up to 300
volts.\209\ It is well recognized that these voltages are potentially
lethal. Exhibit 0002 alone describes at least 25 accidents in which
employees were killed because of contact with circuit parts energized
at 120 volts to ground.\210\ OSHA believes that, in the past, the
practice was for power line workers to use leather gloves rather than
rubber insulating gloves to handle these voltages, and it is possible
that these commenters are recommending that the standard permit that
practice. However, leather gloves do not insulate workers from
energized parts (Ex. 0002).\211\ Perspiration can saturate these gloves
during use, making them conductive. One of the accidents in the record
involved an employee handling a 120-volt conductor with leather gloves
(id.). Therefore, the final rule requires employees to avoid contact
with circuit parts energized at 50 to 300 volts.\212\ If it is
necessary for employees to handle exposed parts energized at these
voltages, they must do so in accordance with final Sec.
1926.960(c)(1)(iii)(A), (c)(1)(iii)(B), or (c)(1)(iii)(C); and any
insulating equipment used must meet the electrical protective equipment
requirements in final Sec. 1926.97.
---------------------------------------------------------------------------
\209\ In the proposed rule, the lowest voltage in the avoid-
contact range was 51 volts, not 50 volts as indicated by the two
commenters.
\210\ See the 25 accidents described at http://www.osha.gov/pls/imis/accidentsearch.accident_detail?id=660118&id=817114&id=14307003&id=14311666&id=982645&id=14327944&id=894584&id=14351076&id=14525430&id=201360062&id=601468&id=14251771&id=14251987&id=14257034&id=14371751&id=14523591&id=14383376&id=695437&id=514547&id=170080238&id=14400782&id=14219851&id=764365&id=14505366&id=778332.
\211\ See, for example, the two accidents described at http://www.osha.gov/pls/imis/accidentsearch.accident_detail?id=14371751&id=660118.
\212\ OSHA proposed 51 volts as the low end of the avoid-contact
range. The final rule adopts 50 volts as the low end for consistency
with Table R-6 in existing Sec. 1910.269 and IEEE Std 516-2009.
---------------------------------------------------------------------------
There were few comments on the minimum approach distances proposed
in 2005 for voltages of 301 volts to 72.5 kilovolts. Some commenters
objected to the small changes in minimum approach distances from
existing Sec. 1910.269 that were specified in the 2005 proposal. (See,
for example, Exs. 0227, 0543.1.) EEI maintained that the safety benefit
of slight changes was outweighed by the practical implications of
implementing revised minimum approach distances:
For the sake of an inch or two, OSHA ought not to change the
existing MAD tables. Such changes could require revising every
safety rule book and training curriculum in the industry, including
among line contractors, as well as related retraining of line
workers. The established clearance distances are well-known to
employees in the transmission and distribution industry, and
changing them for the sake of an additional inch or two can only
lead to confusion, with no significant safety benefit. As a
practical matter, it is not clear that such a small change will make
a significant difference in the safety of line workers. [Ex. 0227]
OSHA understands that changing minimum approach distances, even
slightly, may require employers to adjust their safety rules and
training. The Agency accounted for the cost of changing these safety
rules and training because of differences between existing Sec.
1910.269 and the final rule, including the revised minimum approach
distances (see Section VI, Final Economic Analysis and Regulatory
Flexibility Analysis, later in this preamble).
Ignoring evidence that small increases in the electrical component
of the minimum approach distances are necessary would result in
shrinking the ergonomic component of the minimum approach distance,
thereby making work less safe for employees than if the ergonomic
component remained constant. As explained previously, OSHA designed
this final rule to ensure that the ergonomic component of the minimum
approach distance remains at least 0.31 meters (1 foot) or 0.61 meters
(2 feet), depending on the voltage.
OSHA proposed a minimum approach distance of 0.31 meters (1 foot)
for voltages of 301 through 750 volts. Although there were no comments
on this minimum approach distance, the Agency is adopting a slightly
larger distance. In Section 4.7.1.1, IEEE Std 516-2009 explained its
approach to setting the electrical component of the minimum approach
distance, as follows:
For ac and dc line-to-line and line-to-ground work between 300 V
and 5.0 kV, sufficient test data are not available to calculate the
MAID,\[213]\ which is less than 2 cm or 0.07 ft. For this voltage
range, it is assumed that MAID is 0.02 m or 0.07 ft . . . . [Ex.
0532]
---------------------------------------------------------------------------
\213\ IEEE Std 516-2009 assumes that MAID and MTID have the same
value in this voltage range. Using this approach, the electrical
component of the minimum approach distance would be the same in air
or along the length of an insulated tool.
Using this approach for voltages of 301 to 750 volts, OSHA added the
0.31-meter (1-foot) ergonomic component of the minimum approach
distance to the 0.02-meter (0.07-foot) electrical component, for a
total minimum approach distance of 0.33 meters (1.07 feet) in the final
rule.
As noted earlier, OSHA based the methodology for calculating the
electrical component of the minimum approach distance for voltages from
751 volts to 72.5 kilovolts in the 2005 proposal on IEEE Std 4. Table 6
lists the critical sparkover distances from that standard as listed in
IEEE Std 516-2009.
Table 6--Sparkover Distance for Rod-to-Rod Gap
------------------------------------------------------------------------
Gap spacing from
60 Hz Rod-to-rod sparkover (kV peak) IEEE Std 4-1995
(cm)
------------------------------------------------------------------------
25.................................................. 2
36.................................................. 3
46.................................................. 4
53.................................................. 5
60.................................................. 6
70.................................................. 8
79.................................................. 10
86.................................................. 12
95.................................................. 14
104................................................. 16
112................................................. 18
120................................................. 20
143................................................. 25
167................................................. 30
192................................................. 35
218................................................. 40
243................................................. 45
270................................................. 50
322................................................. 60
------------------------------------------------------------------------
Source: IEEE Std 516-2009 (Ex. 0532).
To use the table to determine the electrical component of the
minimum approach distance, the employer would determine the peak phase-
to-ground transient overvoltage and select a gap from the table that
corresponds to that voltage as a withstand voltage rather than a
critical sparkover voltage. For voltages between 5 and 72.5 kilovolts,
the process for using Table 6 to calculate the electrical component of
the minimum approach distance, starting with the phase-to-phase system
voltage, was described generally as follows in Draft 9 of the 2009
revision to IEEE Std 516 (Ex. 0524):
1. Divide the phase-to-phase voltage by the square root of 3 to
convert it to a phase-to-ground voltage.
2. Multiply the phase-to-ground voltage by the square root of 2 to
convert the rms value of the voltage to the peak phase-to-ground
voltage.
3. Multiply the peak phase-to-ground voltage by the maximum per-
unit transient overvoltage, which, for this voltage range, is 3.0, as
discussed earlier in this section of the preamble. This is the maximum
phase-to-ground transient overvoltage, which corresponds to the
withstand voltage for the relevant exposure.\214\
---------------------------------------------------------------------------
\214\ The withstand voltage is the voltage at which sparkover is
not likely to occur across a specified distance. It is the voltage
taken at the 3[sigma] point below the sparkover voltage, assuming
that the sparkover curve follows a normal distribution.
---------------------------------------------------------------------------
[[Page 20435]]
4. Divide the maximum phase-to-ground transient overvoltage by 0.85
to determine the corresponding critical sparkover voltage. (The
critical sparkover voltage is 3 standard deviations (or 15 percent)
greater than the withstand voltage.)
5. Determine the electrical component of the minimum approach
distance from the table through interpolation.\215\
---------------------------------------------------------------------------
\215\ Draft 9 of IEEE Std 516 used curve-fitted equations rather
than interpolation to determine the distance. The two methods result
in nearly equivalent distances.
---------------------------------------------------------------------------
These steps are illustrated in Table 7.
Table 7--Calculating the Electrical Component of MAD 751 V to 72.5 kV
----------------------------------------------------------------------------------------------------------------
Maximum system phase-to-phase voltage (kV)
Step ----------------------------------------------------------------------------------
15 36 46 72.5
----------------------------------------------------------------------------------------------------------------
1. Divide by [radic]3........ 8.7................ 20.8............... 26.6............... 41.9
2. Multiply by [radic]2...... 12.2............... 29.4............... 37.6............... 59.2
3. Multiply by 3.0........... 36.7............... 88.2............... 112.7.............. 177.6
4. Divide by 0.85............ 43.2............... 103.7.............. 132.6.............. 208.9
5. Interpolate from Table 6.. 3+(7.2/10)*1....... 14+(8.7/9)*2....... 20+(12.6/23)*5..... 35+(16.9/26)*5
Electrical component of MAD 3.72............... 15.93.............. 22.74.............. 38.25
(cm).
----------------------------------------------------------------------------------------------------------------
This method is consistent with the method OSHA used to develop the
minimum approach distances for voltages of 751 volts to 72.5 kilovolts
in the 2005 proposal. Although OSHA received no comments on this
approach, the methodology contained in final IEEE Std 516-2009 added
one additional step (Ex. 0532). The distances in IEEE Std 4-1995 result
from 60-Hz impulse rod-to-rod tests. The extra step in IEEE Std 516-
2009 divides the phase-to-ground maximum transient overvoltage by 1.3
to account for the difference between the strength of an air gap under
60-hertz voltages and the strength under transient voltages.\216\ The
IEEE committee relied on two papers that are not in the current OSHA
record to develop the 1.3 factor.\217\
---------------------------------------------------------------------------
\216\ A 60-hertz voltage cycles through its maximum, or peak,
voltage 60 times each second, and the value of the voltage forms a
sine wave. A transient overvoltage does not cycle, but generally
increases quickly as a single pulse.
\217\ These documents are (1) CIGR[Eacute]/SC 33, ``Phase-to-
Phase Insulation Coordination,'' ELECTRA, no. 64, 1979; and (2)
Esmeraldo, P. C. V., and Fonseca, C. S., ``Evaluation of the Phase-
to-Phase Overvoltage Characteristics due to Switching Surges for
Application on Risk of Failure Statistical Methods in Non-
Conventional Power Design,'' Paper 34.01, 6th ISH, New Orleans,
1989.
---------------------------------------------------------------------------
OSHA is not adopting this part of the method that IEEE Std 516-2009
uses to calculate the electrical components of the minimum approach
distances for voltages from 751 volts to 72.5 kilovolts. First, the
Agency does not believe that there is sufficient information in this
record to support the 1.3 conversion factor, which was not used in
earlier editions of IEEE Std 516 and was not used in any version of the
NESC through the 2007 edition.\218\ Second, although OSHA raised this
issue in its September 2009 reopening notice, no commenters voiced
support for such a change in the OSHA rule. Finally, as previously
noted, for voltages of 72.5 kilovolts and lower, IEEE Std 516-2009
assumes that the electrical component of the minimum approach distance
is the same with tools in the air gap as it is for air alone. The
dielectric strength of an air gap is less with a tool in the gap than
it is when the gap is air, however (see, for example, Exs. 0556, 0558).
Thus, an increase in the electrical component of the minimum approach
distance is necessary to account for tools. OSHA does not believe that
a 60-hertz-to-transient conversion factor (which reduces MAD values) is
appropriate when no counterbalancing distance is added to account for
tools in the air gap. For these reasons, the Agency is adopting the
proposed methodology for determining the electrical component of the
minimum approach distance for voltages of 751 volts to 72.5 kilovolts.
As noted earlier, OSHA also is adopting the proposed ergonomic
component for this voltage range. Thus, the final rule incorporates
minimum approach distances for these voltages generally as proposed.
However, Table V-5 in the final rule breaks the proposed voltage range
of 751 volts to 15 kilovolts into two ranges--751 to 5,000 volts and
5.1 kilovolts to 15 kilovolts.
---------------------------------------------------------------------------
\218\ The 2012 NESC adopts minimum approach distances from IEEE
Std 516-2009, which, as noted, uses the 1.3 conversion factor.
---------------------------------------------------------------------------
For the reasons described earlier under the discussion of the 301-
to 750-volt range, IEEE Std 516-2009 sets the electrical component of
the minimum approach distance at 0.02 meters for voltages of 301 to
5,000 volts.\219\ As can be seen from Table 6, this is the sparkover
distance for the smallest transient overvoltage listed in the table.
There is no evidence in the record that lower voltages will produce
larger sparkover distances. Consequently, there is no reason to believe
that the electrical component of the minimum approach distance will be
greater for voltages of 5,000 volts or less. In addition, rounding the
electrical component of the minimum approach distance to the nearest 25
millimeters (1.0 inch) results in a minimum distance of 25 millimeters.
As explained earlier, OSHA concludes that this value is reasonable and,
therefore, adopts 0.02 meter (1 inch) as the electrical component of
the minimum approach distance for this voltage range.
---------------------------------------------------------------------------
\219\ The electrical component of MAD is 0.02 meters (1 inch)
for all voltages from 301 volts to 5.0 kilovolts. However, the
ergonomic component of MAD is 0.305 meters (1 foot) for voltages up
to 750 volts and 0.61 meters for higher voltages as explained
earlier.
---------------------------------------------------------------------------
The electrical component of MAD--calculation methods for voltages
over 72.5 kilovolts. As noted earlier, OSHA based its proposed minimum
approach distances on criteria adopted by NESC Subcommittee 8 in 1993.
The NESC based its criteria, at least in part, on IEEE Std 516-1987. As
noted in Appendix B to proposed Subpart V, OSHA used the following
equation, which was based on IEEE Std 516-1987, to calculate the
electrical component of the minimum approach distance for voltages of
72.6 to 800 kilovolts in the proposed rule:
[[Page 20436]]
[GRAPHIC] [TIFF OMITTED] TR11AP14.003
Where:
D = Electrical component of the minimum approach distance in air in
feet
C = 0.01 to account for correction factors associated with the
variation of gap sparkover with voltage
a = A factor relating to the saturation of air at voltages \220\ of
345 kilovolts or higher
---------------------------------------------------------------------------
\220\ This voltage is the maximum transient overvoltage.
---------------------------------------------------------------------------
pu = Maximum anticipated transient overvoltage, in per unit (p.u.)
Vmax = Maximum rms system line-to-ground voltage in kilovolts--this
value is the true maximum, that is, the normal highest voltage for
the range (for example, 10 percent above the nominal voltage).
Phase-to-ground exposures. For phase-to-ground exposures,
rulemaking participants agreed that the proposal's methodology for
calculating minimum approach distances was generally appropriate unless
insulated tools were present across the air gap. (See, for example,
Exs. 0521, 0527.1, 0529, 0575.1.) For instance, EEI commented, ``The
existing MAID formula, based on rod-to-rod gap data, is acceptable for
all line-to-ground applications [through 800 kilovolts with a maximum
per-unit overvoltage of 2.44 per unit]'' (Ex. 0527.1).
Therefore, the final rule requires employers to set minimum
approach distances based on Equation 1 for phase-to-ground exposures at
voltages of more than 72.5 kilovolts. Here is the full equation
contained in Table V-2, with the part that is equivalent to Equation 1
highlighted:
MAD = 0.3048(C + a)VL-GTA + M
The equation in Table V-2 is identical to Equation 1 except that it:
(1) Incorporates an altitude correction factor, A, as described later
in this section of the preamble, (2) converts the result to meters
through multiplication by 0.3048, and (3) adds the ergonomic component
of MAD, M to the electrical component of MAD given in Equation 1. In
addition, the table uses slightly different variable designations: VL-G
for Vmax and T for pu.
As explained earlier in this section of the preamble, OSHA decided
to specify minimum approach distances that account for the presence of
tools in the air gap unless the employer can demonstrate that there is
only air between the employee and the energized part or between the
employee and ground, as appropriate. (The air gap would be between the
employee and the energized part if the employee is at ground potential,
or at the potential of another energized part, or between the employee
and ground if the employee is at the potential of the energized part
during live-line barehand work.) Consequently, in the equation for
phase-to-phase system voltages of more than 72.5 kilovolts in Table V-
2, the term C must be adjusted depending on whether the minimum tool-
insulation distance or the minimum air-insulation distance will be used
as the electrical component of the minimum approach distance. According
to IEEE Std 516-2009, C is 0.01 for the minimum air-insulation distance
and 0.011 for the minimum tool-insulation distance. OSHA concludes that
these values of C are reasonable because they are supported by
scientific evidence (Exs. 0556, 0558) and because there were no other
values recommended in the rulemaking record for the proposal.
Therefore, these values are incorporated in Table V-2 in the final
rule.
There is one other minor issue that requires resolution before the
electrical components of the minimum approach distances for phase-to-
ground exposures can be calculated--that is, the determination of the
saturation factor, a. The proposed rule and IEEE Std 516-1987, which
formed the original basis for the calculation of phase-to-ground
minimum approach distances in existing Sec. 1910.269, relied on Figure
2 in ``Recommendations for Safety in Live Line Maintenance'' to
determine the saturation factor (269-Ex. 60; Ex. 0558). That figure
plotted the saturation factor against crest voltage. In preparing IEEE
Std 516-2009, the IEEE committee decided to use equations to represent
the saturation factor rather than reading it from the figure (Ex.
0532). The committee used a curve-fitting program to develop the
following equations for the saturation factor for calculating the
electrical components of the minimum approach distances for phase-to-
ground exposures: \221\
---------------------------------------------------------------------------
\221\ These equations calculate the saturation factor, a, for
any exposure for which Equation 1 is used to calculate the
electrical components of the minimum approach distances. However, as
explained later in this section of the preamble, the committee chose
to apply Equation 1 only to phase-to-ground exposures.
---------------------------------------------------------------------------
[[Page 20437]]
[GRAPHIC] [TIFF OMITTED] TR11AP14.004
OSHA concludes that adopting IEEE's method of calculating the
saturation factor is reasonable because that method will lead to more
accurate and consistent determinations of minimum approach distances
for phase-to-ground exposures on system voltages of more than 72.5
kilovolts than approximating the saturation factor by reading it
directly from the graph, as was done to calculate the minimum approach
distances in existing Sec. 1910.269.\223\ Consequently, the Agency is
adopting these equations for calculating the saturation factor in Table
V-2 in the final rule for phase-to-ground exposures, except for the
1,600-kilovolt limitation for the last voltage range. As explained
later in this section of the preamble, the Agency concluded that
extrapolating the saturation factor beyond the 1,600-kilovolt maximum
switching impulse used during the experimental testing used to support
the IEEE method is reasonable and will better protect employees than
alternative approaches. For phase-to-ground exposures, this limit would
have no practical effect as the Agency anticipates that few, if any,
systems will have maximum phase-to-ground transient overvoltages
(VPeak) as high as 1,600 kilovolts.
---------------------------------------------------------------------------
\222\ Through an apparent oversight, the IEEE equations for a
fail to cover 635.0 kilovolts.
\223\ The quality of the graph is poor, and the underlying data
is no longer available (Ex. 0532).
---------------------------------------------------------------------------
Phase-to-phase exposures. For phase-to-phase exposures, OSHA based
the proposal on the 2002 NESC approach, which used the maximum phase-
to-phase transient overvoltage in Equation 1 for calculating the
electrical components of minimum approach distances for phase-to-phase
exposures. As noted in Appendix B to proposed Subpart V, OSHA used the
following equation to determine the phase-to-phase maximum transient
overvoltage based on a system's per-unit nominal voltage phase-to-
ground crest:
[GRAPHIC] [TIFF OMITTED] TR11AP14.005
Where:
pup = p.u. phase-to-phase maximum transient overvoltage, and
pug = p.u. phase-to-ground maximum transient overvoltage.
The value for pup was to be used for pu in Equation (1) for
calculating the phase-to-phase MADs.
Until approximately 2007, the technical committees responsible for
IEEE Std 516 and the NESC calculated minimum approach distances based
on these equations. Because OSHA was using the same methodology, the
Agency relied on the technical committees' calculations as they
appeared in IEEE Std 516-2003 and the 2002 NESC and proposed to include
those distances in Sec. 1910.269 and subpart V.
During the revision cycle for IEEE Std 516-2009, the IEEE technical
committee responsible for revising that standard identified what, in
the committee's view, was an error in the calculations of phase-to-
phase minimum approach distances for nominal voltages 230 kilovolts and
higher. At these voltages, the saturation factor, a, which appears in
Equation (1), varies depending on the voltage; that is, the value of a
increases with increasing voltage. The NESC subcommittee calculated the
phase-to-phase minimum approach distances for the 1993 NESC using a
value for the saturation factor, a, corresponding to the maximum phase-
to-ground transient overvoltage, rather than the maximum phase-to-phase
transient overvoltage.\224\
---------------------------------------------------------------------------
\224\ ANSI/IEEE Std 516-1987 did not contain distances for
phase-to-phase exposures. The NESC subcommittee derived them by
applying the IEEE equation, Equation (1), to the phase-to-phase
temporary overvoltages calculated using Equation (2).
---------------------------------------------------------------------------
Because, in its proposal, OSHA borrowed the minimum approach
distances from IEEE Std 516-2003 and the 2002 NESC, the Agency twice
solicited comments on whether changes to its rule were necessary in
light of the
[[Page 20438]]
errors identified by the IEEE committee (73 FR 62942, 74 FR 46958).
The consensus among rulemaking participants was that the proposed
rule's minimum approach distances for phase-to-phase exposures at
maximum transient overvoltages exceeding approximately 630 kilovolts
involved a mathematical error. (See, for example, Exs. 0521, 0524,
0526.1, 0528, 548.1; Tr2. 122-123, 139.) Draft 9 of the 2009 revision
of IEEE Std 516 derived formulas for the saturation factor, a, using a
curve-fitting program (Ex. 0524). When maximum phase-to-phase transient
overvoltages are less than 630 kilovolts, a is 0.0, and the
mathematical error is not present (id.). For higher maximum transient
overvoltages, a is a function of the peak voltage, which is higher for
phase-to-phase exposures than it is for phase-to-ground exposures (id.)
Because the proposed rule used an approach for calculating phase-
to-phase minimum approach distances that commenters generally agreed
was in error, OSHA decided to make changes in this final rule to
account for that mistake.
To determine the increased risk to employees, OSHA compared the
probability of sparkover for the electrical component of the largest
proposed minimum approach distance with the probability of sparkover
for the electrical component of the corrected minimum approach
distance.\225\ For systems operating at 800 kilovolts, the probability
of sparkover with the maximum phase-to-phase transient overvoltage at
the corrected electrical component of the minimum approach distance is
approximately 1 in 1,000. The probability of sparkover at the proposed
electrical component of the minimum approach distance is 64 in 100.
Clearly, the proposed minimum approach distance poses significant risk
to employees when the phase-to-phase transient overvoltage is at its
maximum. Because, for systems operating at 800 kilovolts, the minimum
approach distance in the existing standard is the same as the distance
in the proposed rule, the existing standard also poses a substantial
risk to employees.
---------------------------------------------------------------------------
\225\ The corrected minimum approach distance is the minimum
approach distance calculated with an extrapolated saturation factor
for the maximum phase-to-phase transient overvoltage in place of the
maximum phase-to-ground transient overvoltage. This is the method
used in IEEE Std 516 Draft 9 (Ex. 0524).
---------------------------------------------------------------------------
OSHA calculated the probabilities of sparkover at the proposed
electrical component of the minimum approach distance and the corrected
minimum approach distance in the following manner. The minimum approach
distance proposed in Table V-2 for this exposure was 7.91 meters, and
the electrical component of this distance was 7.60 meters (7.91 meters
- 0.31 meters). The phase-to-phase maximum transient overvoltage at 800
kilovolts is 2,352 kilovolts.\226\ Draft 9 of the 2009 revision of IEEE
Std 516 derived formulas for the saturation factor, a, using a curve-
fitting program. Equation 59 in that draft standard provided the
following equation for a for maximum transient overvoltages of more
than 1,485 kilovolts:
---------------------------------------------------------------------------
\226\ Using Equation 2, the phase-to-phase maximum per-unit
transient overvoltage is 2.0 + 1.6, or 3.6, times the peak phase-to-
ground voltage. The peak phase-to-ground voltage is the maximum
system phase-to-phase voltage times [radic]2 divided by [radic]3.
Thus, the maximum transient overvoltage for a phase-to-phase
exposure for a maximum system voltage of 800 kilovolts (the highest
system voltage) is 3.6 x 800 x [radic]2 / [radic]3, or 2,352,
kilovolts.
---------------------------------------------------------------------------
a = (TOV - 1,485) x 0.00000491 + 0.0055704,
where TOV is the maximum transient overvoltage (Ex. 0524).
This equation extrapolates a beyond the 1,600-kilovolt upper limit
on available rod-gap test data. Using this equation to determine a and
using that value in Equation 1, the withstand voltage corresponding to
7.60 meters is 1,966 kilovolts. The critical sparkover voltage for a
7.60-meter gap is 1,966 / 0.85, or 2,312, kilovolts. (See Step 4 in the
explanation of how to use Table 6 to determine the electrical component
of clearance earlier in this section of the preamble.) The probability
of sparkover for this distance at the maximum transient overvoltage of
2,352 kilovolts is 64 percent.\227\ This percentage means that the
electrical component of the proposed minimum approach distance at 800
kilovolts has a probability of 64 percent of sparking over at the
industry-accepted maximum per-unit transient overvoltage of 2.0.
---------------------------------------------------------------------------
\227\ The probability of sparkover is determined by normalizing
the mean (average) sparkover voltage and the standard deviation and
looking up those two normalized parameters in standard distribution
tables. The critical sparkover voltage (that is, the mean voltage
that will spark over) is 2,312 kilovolts. The standard deviation is
5 percent of this value, or 115.6 kilovolts. The maximum transient
overvoltage corresponding to the industry-accepted value of 2.0 per
unit at 800 kilovolts is 2,352 kilovolts, or 0.346 standard
deviations above the mean voltage at sparkover. The probability of
sparkover can be determined from normal distribution tables for a Z
of 0.346.
---------------------------------------------------------------------------
There were three basic methods submitted to the record for
calculating minimum approach distances for phase-to-phase exposures.
The first method was the one OSHA used in developing the proposed rule.
As described earlier in this section of the preamble, that method used
Equation (1) and Equation (2) to determine the minimum approach
distance, but without adjusting the saturation factor, a, in Equation
(1) to account for the increase between the phase-to-ground and phase-
to-phase maximum transient overvoltage. For the reasons already
explained, OSHA concludes that this method is invalid and would expose
employees to an unreasonable increase in risk for phase-to-phase
exposures at maximum transient overvoltages higher than 630 kilovolts.
Consequently, the Agency decided against adopting this method in the
final rule.
The second method, adopted by IEEE Std 516-2009, uses equations
based on the paper by Vaisman,\228\ and two papers by Gallet,\229\ to
determine minimum approach distances (Ex. 0532). OSHA refers to this
method as the ``IEEE method'' in the following discussion.
---------------------------------------------------------------------------
\228\ Vaisman, op cit.
\229\ Gallet, G., Leroy, G., Lacey, R., and Kromer, I.,
``General expression for positive switching impulse strength valid
up to extra line air gaps,'' IEEE Transaction on Power Apparatus and
Systems, vol. PAS-94, pp. 1989-1993, Nov./Dec. 1975 (Ex. 0560); and
Gallet, G., Hutzler, B., and Riu, J-P., ``Analysis of the switching
impulse strength of phase-to-phase air gaps,'' IEEE Transactions on
Power Delivery, vol. PAS-97, no. 2, Mar./Apr. 1978 (Ex. 0553).
---------------------------------------------------------------------------
The formula used in IEEE Std 516-2009 for calculating phase-to-
phase minimum approach distances for voltages of 72.6 kilovolts and
higher is derived from testing that replicates line configurations
rather than live-line work. Accordingly, the underlying formula in IEEE
Std 516-2009 originally was intended for determining appropriate
conductor spacing rather than for determining minimum approach
distances appropriate for employees performing live-line work. To
account for the presence of an employee working in an aerial lift
bucket within the air gap between the two phase conductors, the IEEE
committee incorporated the concept of a floating electrode in the air
gap. The committee's approach to determining the electrical component
of the minimum approach distance can be summarized as follows:
1. Start with a formula to calculate the critical sparkover voltage
for the distance between two conductors.
2. Modify the formula to account for a 3.3-meter floating electrode
representing an employee working within an aerial lift bucket between
the phase conductors.
3. Modify the formula to convert the critical sparkover voltage to
a withstand voltage.
[[Page 20439]]
4. Determine the maximum transient overvoltage on the line, and
substitute that value for the withstand voltage.
5. Rearrange the equation to solve for distance.
In more technical detail, this approach is described as follows:
1. The equation for calculating the critical sparkover voltage for
a given distance between two conductors includes a gap factor, k. This
factor depends on several variables:
alpha = the proportion of the negative switching impulse voltage to the
total phase-to-phase impulse voltage,
Ddesign L-L = the design phase-to-phase clearance, and
H = the average height of the phase above the ground.
Table 8 shows the values recommended by IEEE Std 516-2009 for these
variables and the resultant gap factors.
Table 8--IEEE Std 516-2009 Gap Factors (k)
----------------------------------------------------------------------------------------------------------------
Phase-to-phase voltage alpha Ddesign L-L/H k
----------------------------------------------------------------------------------------------------------------
<= 242 kV........................................... 0.33 0.8 1.451
> 242 kV............................................ 0.41 0.8 1.530
----------------------------------------------------------------------------------------------------------------
IEEE Std 516-2009 uses the following equation to calculate the
critical sparkover voltage for the designed gap between two phase
conductors:
[GRAPHIC] [TIFF OMITTED] TR11AP14.006
Where:
V50 = the critical sparkover voltage in kilovolts,
k = the gap factor from Table 8, and
Dl-l = the sparkover distance in meters.
2. When an employee performs live-line barehand work, the employee
typically is positioned between two or more phase conductors. The
employee could be working, for example, from an aerial lift platform or
a conductor cart. These devices and the worker are both conductive. The
presence of a conductive object in the air gap between the two
electrodes (which, in this case, are the two conductors) reduces its
dielectric strength. IEEE Std 516-2009 introduces a constant,
KF, to account for the presence of the employee and other
conductive objects in the air gap. In that consensus standard,
KF equals 0.9 to accommodate a 3.3-meter conductive object
in the air gap. This value is equivalent to a 10-percent reduction in
the dielectric strength of the gap.
With this factor included, the equation for the critical sparkover
voltage is:
[GRAPHIC] [TIFF OMITTED] TR11AP14.007
3. IEEE sets the withstand voltage at a level that is 3[sigma]
lower than the critical sparkover voltage, as indicated in the
following equation:
VW = (1-3[sigma])V50
Where:
VW = the withstand voltage,
V50 = the critical sparkover voltage, and
[sigma] = 5 percent for a normal distribution.
4. To solve for the electrical component of the clearance, the
maximum transient overvoltage is substituted for the withstand voltage.
The IEEE committee used the following equation to calculate the maximum
transient overvoltage on the line:
[GRAPHIC] [TIFF OMITTED] TR11AP14.047
Where:
TL-L = the phase-to-phase maximum transient overvoltage in per unit,
and
TL-G = the phase-to-ground maximum transient overvoltage in per
unit.
5. Substituting the values of the various constants and solving
these equations for distance, IEEE Std 516-2009 uses the following
equations to calculate the minimum air-insulation distance:
[GRAPHIC] [TIFF OMITTED] TR11AP14.008
[[Page 20440]]
Where:
DL-L = the minimum air-insulation distance (the minimum distance
needed to prevent sparkover with air alone as the insulating
medium),
TL-G = the phase-to-ground maximum transient overvoltage in per
unit, and
VL-L = the rms phase-to-phase system voltage.
Testifying on behalf of EEI, Dr. Horton explained the IEEE method
as follows:It is well recognized that the dielectric strength of a
given electrode geometry is different for line-to-ground surges than
for line-to-line surges. A phase-to-phase surge between two phases is
the voltage difference between the phase-to-ground surges which may be
of opposite polarity and displaced in time, (and many times are)
whereas a maximum phase-to-ground surge is considered uni-polar.
* * * * *
[The surges from the two phases] are displaced by some amount of
time. . . .
The resulting line-to-line surge . . . will stress a given air
gap geometry differently than either of the line-to-ground surges
that the resulting waveform is comprised of. Unlike line-to-ground
insulation characteristics of a given electrode geometry, which
depend primarily on the gap spacing, line-to-line insulation
characteristics . . . are more complex because one of the surges has
a positive polarity with respect to ground while the other has a
negative polarity with respect to ground.
The resulting insulation strength is a function of alpha, which
again, is the ratio of the negative surge to the sum of the negative
and positive surge.
The IEEE recently tried to address this limitation [in IEEE Std
516-2009] by developing a method based on a modified version of the
Gallet equation. The upper voltage limit of the resulting equation
is 3500 kV peak or air gap distances of up to 15 meters. This
limitation is well within the typical range of live-line working
scenarios in the United States.
Historically, IEEE Standard 516 has used rod-to-rod electrode
geometry data for determining line-to-ground MAID. One reason for
this is that the test data that the method is based on represents a
rod-to-rod electrode configuration.
In addition, the line-to ground [testing] that was performed
showed that the rod-to-rod results were in the middle range for a
wide range of conductor configurations. The rod-to-rod data
presented neither the worst case nor the best. Thus, it was chosen
as a reasonable representation of all the possible gap
configurations to which a line worker might be exposed while
performing tasks, which are characterized as line-to-ground.
When considering line-to-line minimum air insulation distances,
a rod-to-rod gap may not be the most appropriate. Typically, the
worker will bond onto one phase and will not need to bridge the gap
to the other phase. Since the shape of the adjacent electrode
remains unchanged during the task, (in other words it remains a
conductor) the resulting air gap geometry more closely resembles
that of a conductor-to-conductor. The effect of the change in
geometry of the phase to which the worker is bonded is dealt with in
the new IEEE method by introducing an additional factor that
accounts for the effect of large conductive objects floating in the
air gap. [Tr2. 83-86]
No rulemaking participant recommended that OSHA adopt the IEEE
method for calculating minimum air-insulation distances for phase-to-
phase exposures at more than 72.5 kilovolts. In addition, the Agency
has several concerns with the approach taken in that consensus
standard. First, the IEEE method relies on test data for an electrode
configuration that is not comparable to the rod-to-rod gap used for
phase-to-ground exposures on which OSHA based the minimum approach
distances in existing Sec. 1910.269. Second, the choices for some of
the parameters used in the equations for the electrical component of
the minimum approach distance appear to be arbitrary. Third, the IEEE
method is based on papers that explore the dielectric strength of
electric power lines rather than the dielectric strength of circuit
parts configured as they would be when employees are performing live-
line barehand work.
(1) Conductor-to-conductor-based method does not accurately model
employee exposure. OSHA considered the evidence in the record and
concludes that the IEEE method, which is based on testing on conductor-
to-conductor electrodes, does not accurately model employee exposure.
As noted by Dr. Horton, the approach taken by existing Sec. 1910.269
and earlier editions of IEEE Std 516 based the calculation of minimum
air-insulation distances for both phase-to-ground and phase-to-phase
exposures on phase-to-ground testing of rod-to-rod electrodes (Tr2.
85).\230\ By adopting the approach taken in IEEE Std 516-1987 in
promulgating existing Sec. 1910.269, OSHA deemed it reasonable to rely
on rod-to-rod gap data (59 FR 4383-4384). The record in this rulemaking
contains reports of tests on a variety of electrode configurations,
showing clearly that the dielectric strength of air varies with the
configuration (269-Ex. 60; Exs. 0553, 0554). In reviewing the record,
OSHA has again concluded that phase-to-ground rod-to-rod gap test data
forms a reasonable basis for the determination of minimum approach
distances because it falls in the middle range of various electrode
configurations (that is, it is neither the best case nor the worst). In
addition, OSHA believes that employees performing work on energized
lines are rarely exposed to the worst-case configuration, rod-to-plane
electrodes, or to the best-case configuration, sphere-to-sphere
electrodes. Thus, an exposure representing the middle range of various
electrode configurations is reasonable for a model based on phase-to-
ground testing.
---------------------------------------------------------------------------
\230\ Typical configurations include rod-rod, rod-plane, and
conductor-plane. The terminology refers to the configuration of the
two electrodes. For example, in a rod-plane configuration, one of
the electrodes is a rod perpendicular to an electrode in the shape
of a plane.
---------------------------------------------------------------------------
A paper by Gallet \231\ reports on a variety of phase-to-phase gap
factors, including supported busbars and asymmetrical geometries, as
shown in the following table (Ex. 0553):
---------------------------------------------------------------------------
\231\ Gallet, G, Hutzler, B., and Riu, J-P., op cit.
------------------------------------------------------------------------
Electrode geometry alpha = 0.5 alpha = 0.33
------------------------------------------------------------------------
Rings or large, smooth 1.80 1.70
electrodes.....................
Crossed conductors.............. 1.65 1.53
Rod-rod or conductor-conductor.. 1.62 1.52
Supported busbars............... 1.50 1.40
Asymmetrical geometries......... 1.45 1.36
------------------------------------------------------------------------
Table reprinted with permission from the Institute for Electrical and
Electronics Engineers (IEEE). OSHA revised the table from IEEE's
original.
Although the performance during phase-to-phase tests are the same
for rod-to-rod and conductor-to-conductor electrodes, OSHA concludes
that phase-to-phase exposures are more likely to correspond to
asymmetrical geometries, which, as can be seen from the table in the
Gallet paper, have a lower dielectric strength than rod-to-rod or
conductor-
[[Page 20441]]
to-conductor electrodes.\232\ Employees performing live-line barehand
work face a wide variety of exposure conditions reflecting a number of
different electrode configurations. Several of these electrode
configurations are not equivalent to conductor-to-conductor electrodes.
Employees working on energized supported busbars could experience
phase-to-phase exposures. Additionally, during live-line barehand work
on energized conductors, employees are working on the conductors, and
the installation may be configured differently when maintained or
installed. For example, a damaged portion of a bundled conductor may
protrude from the bundle, or an employee may be holding an armor rod
perpendicular to the conductor. The equipment used to position the
employee also can affect the shape of one of the electrodes. The Agency
believes that these examples may more closely resemble asymmetrical
geometries. Consequently, the gap factor for those electrode
configurations, as shown in the table, would be lower than the gap
factor used in IEEE Std 516-2009. The IEEE standard reduced the gap
factor by accounting for a conductive object in the gap. However, the
Agency believes that such a reduction also would be necessary when
another conductive object is in the air gap while an employee is
working on an energized conductor, which could occur as equipment is
transferred to the employee or if a second worker is in the air gap.
Thus, OSHA concludes that a model based on phase-to-phase testing
should be based on asymmetrical electrode geometries and that the IEEE
committee's choice of a conductor-to-conductor gap is not appropriate.
---------------------------------------------------------------------------
\232\ Dielectric strength is proportional to the gap factor.
Thus, a smaller gap factor yields a lower dielectric strength.
---------------------------------------------------------------------------
(2) The values of some of the parameters used in the IEEE method
appear to be arbitrary. The ratio of the negative switching impulse
voltage to the total phase-to-phase impulse voltage is designated as
alpha. Dr. Horton described this parameter, and its importance, as
follows:
A phase-to-phase surge between two phases is the voltage
difference between the phase-to-ground surges which may be of
opposite polarity and displaced in time, (and many times are)
whereas a maximum phase-to-ground surge is considered uni-polar.
[Figure 5] shows how two separate phase-to-ground surges combine
to form a line-to-line surge. . . .
[W]e have one [transient] for phase 1 and we have . . . one for
phase 2, and . . . they are displaced by some amount of time. The
resulting transient overvoltage or surge that would be across the
air gap, which would be the line-to-line air gap, would be . . . a
combination of the [two] curve[s]. [Tr2. 83-84]
[[Page 20442]]
[GRAPHIC] [TIFF OMITTED] TR11AP14.009
The IEEE committee used an alpha of 0.33 for system voltages up to
242 kilovolts. However, the committee used a value of 0.41 for higher
system voltages. It described the rationale for this latter decision
with a quote from the Vaisman paper:
\233\ Figure 5, which is a copy of Figure 4 from Ex. 0545.1, was
included in the presentation by Dr. Horton at the October 28, 2009,
public hearing. (See, also, Ex. 0567.) EEI identified the source of
this figure as EPRI Transmission Line Reference Book: 115-345-kV
Compact Line Design, 2007 (Blue Book).
---------------------------------------------------------------------------
In [extra-high voltage] systems, where there is efficient
overvoltage control and hence the overvoltage factor a tends to lie
in the range of 0.41 to 0.50, the ratio between the line-to-line
(D1) and the line-to-ground (D) clearance equal to 2.0 is the one
which provides a more balanced distribution of flashovers between
the two gaps. [Ex. 0532]
OSHA has two concerns about this choice. First, the paper does not
indicate that an alpha of 0.41 is the smallest expected for these
systems. A smaller value of alpha will produce a smaller value for the
gap factor, k, and, consequently, a larger electrical component of the
minimum approach distance.\234\ Second, it is not clear why efficient
overvoltage control has any effect on alpha. Overvoltage control limits
the maximum transient overvoltage on each individual phase, but it does
not necessarily limit the delay between the peak transient overvoltage
on each phase, which appears as [Delta]Tcr in Figure 5. The
Vaisman paper also explored the effect of [Delta]Tcr, which
is not accounted for in the IEEE method:
---------------------------------------------------------------------------
\234\ In the IEEE method, the critical sparkover voltage,
V50, is directly proportional to k, and the minimum air-
insulation distance (the electrical component of the minimum
approach distance) is inversely proportional to V50.
Thus, the electrical component of the minimum approach distance is
inversely proportional to k.
In other tests, where only the negative wave was displaced, the
observed reductions were:
[[Page 20443]]
Table 2--Reduction in [V50] When Displacing the Negative Wave
----------------------------------------------------------------------------------------------------------------
[alpha] Desired [alpha] Obtained [Delta]Tcr (ms) Reduction (%)
----------------------------------------------------------------------------------------------------------------
0.33................................................ 0.28 1 1.5
0.50................................................ 0.43 1 3.1
0.33................................................ 0.22 2 4.0
0.50................................................ 0.36 2 8.7
----------------------------------------------------------------------------------------------------------------
Nevertheless, under these conditions, besides the shift between
impulses, there was also a decrease of [alpha].
From all the results a maximum reduction of 8.7% in the value of
U50 can be observed when the positive and negative components of
phase-to-phase overvoltage are not synchronized [Ex. 0555].
From Figure 5, it is clear that the maximum overvoltage occurs when
the positive and negative transient waves are synchronized, that is,
when [Delta]Tcr = 0. In addition, it is clear from the BPA
report that the poles of a circuit breaker do not trip simultaneously
(Ex. 0575.1). In addition, circuit characteristics also may contribute
to the size of [Delta]Tcr. The [Delta]Tcr range
shown in the Vaisman paper does not seem unreasonable. Thus, from this
paper, on which the IEEE committee relied, it appears that the maximum
phase-to-phase transient overvoltage should be calculated, as shown by
Table 2 in the Vaisman paper, by using an alpha of 0.50 and reducing
the critical sparkover voltage by 8.7 percent. In this case, the peak
overvoltage on each phase has the same value, which seems reasonable if
the phases are identical in most respects, but displaced by 2
milliseconds, which, based on the BPA report, also seems reasonable.
(3) The IEEE method is based on papers on the design of lines
rather than employee safety during maintenance. Finally, OSHA has a
concern that the IEEE method is based almost exclusively on papers that
explore the dielectric strength of lines. Employees perform work on
energized lines and equipment. In addition, the lines on which
employees work during maintenance and repair may not be in the same
condition as the lines were when they were first installed. The Agency
believes that it is appropriate to base minimum approach distances for
workers on papers and scientific data derived from actual working
conditions.
The Agency agrees with Dr. Horton and EEI that phase-to-phase
overvoltages are more complicated than phase-to-ground overvoltages.
However, the Gallet formula on which the IEEE method is based models
phase-to-ground, as well as phase-to-phase, critical sparkover
voltages. In addition, the IEEE committee chose not to use it for
phase-to-ground exposures, presumably because the papers supporting the
method for phase-to-ground exposures examined the safety of employees
performing live-line maintenance.\235\ OSHA believes that these papers
support the method used in the final rule to calculate minimum approach
distances for phase-to-phase exposures, as well as phase-to-ground
exposures. Therefore, for all the foregoing reasons, OSHA concludes
that the IEEE approach does not reasonably represent the range of
overvoltages or the dielectric strength of air gaps that a worker will
encounter during phase-to-phase exposures.
---------------------------------------------------------------------------
\235\ IEEE Std 516-2009 listed three papers that supported the
method used for phase-to-ground exposures:
Elek, A., and Simpson, J. W., ``Safe clearance and protection
against shocks during live-line work,'' AIEE Transaction on Power
Apparatus and Systems, vol. 80, pt. III, pp. 897-902, Feb. 1962.
IEEE Committee Report, ``Live-line maintenance methods,'' IEEE
Transactions on Power Apparatus and Systems, vol. PAS-92, pp. 1642-
1648, Sept./Oct. 1973.
IEEE Committee Report, ``Recommendations for safety in live-line
maintenance,'' IEEE Transactions on Power Apparatus and Systems,
vol. PAS-87, no. 2, pp. 346-352, Feb. 1968.
All three of these papers examined minimum approach distances
for live-line work (Ex. 0532).
---------------------------------------------------------------------------
The third method, described in Drafts 9 and 10 of IEEE Std 516 and
incorporated in this final rule, uses Equation (3) \236\ to determine
the maximum per-unit transient overvoltage, calculates the saturation
factor, a, based on the maximum phase-to-phase transient overvoltage,
and uses Equation (1) \237\ to determine the minimum approach distance
(Exs. 0524, 0525). The calculation of the saturation factor uses a
curve-fitted equation, which extrapolated the value for that factor
beyond the 1,600-kilovolt limitation on the test data noted earlier.
OSHA refers to this method as the ``extrapolation method'' in the
following discussion. In comments responding to the 2008 reopening
notice, Mr. Brian Erga with ESCI supported the adoption of this method
because it corrects the calculation error present in the 2003 edition
of IEEE Std 516 (Ex. 0521).
---------------------------------------------------------------------------
\236\ TL-L = 1.35TL-G + 0.45. OSHA is
adopting this equation in Table V-2. Drafts 9 and 10 of IEEE Std 516
and final IEEE Std 516 adopt this equation for calculating the
phase-to-phase maximum per-unit transient overvoltage (Exs. 0524,
0525, and 0532), and there is no evidence in the record to indicate
that it does not accurately represent the phase-to-phase maximum
per-unit transient overvoltage.
\237\ D = (C + a) x pu x Vmax.
---------------------------------------------------------------------------
Other rulemaking participants objected to the extrapolation of the
saturation factor. (See, for example, Exs. 0545.1, 0548.1; Tr2. 77-79.)
These rulemaking participants maintained that there was no test data to
support extrapolating this factor and argued that other methods of
estimating the dielectric strength of air demonstrated that
extrapolating the saturation factor would result in minimum approach
distances that are ``dangerously inaccurate'' (Ex. 0548.1). The
Southern Company explained its objections as follows:
[T]here are at least two methods of estimating the dielectric
strength of air gaps that show that extrapolating the saturation
factor, ``a'', beyond the test data [reference omitted] for which it
was based is not valid. A comparison of the MAID values computed
using the [extrapolation] formula and those of Gallet and CRIEPI
[238] [references omitted] show that extrapolating test
points beyond the 1650 kV range is dangerously inaccurate. [Id.]
---------------------------------------------------------------------------
\238\ Central Research Institute of Electric Power Industry.
The Southern Company described how it ``manipulated'' the formulas and
plotted the results, comparing the extrapolation method with the other
two methods (the Gallet and CRIEPI formulas), as shown in Figure 6.
[[Page 20444]]
[GRAPHIC] [TIFF OMITTED] TR11AP14.010
Southern Company included a second figure (not shown here) consisting
of the area beyond 1,600 kilovolts, where test data is unavailable to
support either Equation (1) or the determination of the saturation
factor, a. The commenter concluded:
[These figures] show that three methods agree rather closely for
transient overvoltages less than 1600 kV (the limitation of the
[Drafts 9 and 10] IEEE method). However, at approximately 1800 kV,
the results found using the Gallet and CRIEPI formulas diverge
significantly from the [extrapolation] method. The reason for this
is primarily due to the fact that the Gallet and CRIEPI formulae are
based on test data in this voltage range, whereas, the
[extrapolation] formula is not. [Id.]
OSHA notes that there is a similar divergence between these
formulas at voltages from 600 to 750 kilovolts. The following table
shows minimum air-insulation distances for two voltages \239\ using the
Equation (1) extrapolation method and Southern Company's modified
Gallet formula:
---------------------------------------------------------------------------
\239\ OSHA chose 592.8 and 2,149 kilovolts (which correspond to
systems of 161 kilovolts at 3.0 per-unit maximum transient
overvoltage and 800 kilovolts at 2.1 per-unit maximum transient
overvoltage) because these values generally represent the low and
high end of the voltage range covered by Figure 6. In addition,
there is rod-gap test data supporting the current method at 592.8
kilovolts, but not at 2,149 kilovolts.
----------------------------------------------------------------------------------------------------------------
Equation (1) based on
Voltage extrapolation method \1\ Modified gallet formula Percent difference
----------------------------------------------------------------------------------------------------------------
592.8 kV.......................... 1.28 meters................ 1.50 meters................ 17
2149.0 kV......................... 9.23 meters................ 10.68 meters............... 16
----------------------------------------------------------------------------------------------------------------
\1\ Based on IEEE Standard 516 Draft 9 (Ex. 0524).
This table shows a substantial difference between the Southern
Company's modified Gallet formula and the extrapolation method at
voltages where test data exist. Southern Company's modified Gallet
formula produces minimum approach distances that are much higher at
voltage levels where test data exist than they are where test data do
not exist. Because the modified Gallet formula does not accurately
produce minimum approach distances where test data exists, there is no
reason to believe that it will accurately calculate minimum approach
distances where there is no test data. Therefore, OSHA concludes that
it cannot rely on the Southern Company's analysis to show that the
extrapolation method does not provide adequate employee
protection.\240\ The results of this comparison are not surprising. The
curves representing these formulas have slightly different shapes. In
comparison to Equation (1), in which the saturation factor increases
nearly linearly before and after extrapolation, the Gallet formula
results in a small increase in the saturation factor at lower voltages,
but a large increase at higher voltages. Thus, despite the similarity
in appearance between the two equations, OSHA concludes that, compared
to the extrapolation method, the modified Gallet formula does not
equally represent the strength of the air gap.
---------------------------------------------------------------------------
\240\ The Agency did not compare the modified CRIEPI formula as
there is no evidence in the record to suggest that OSHA base the
final rule on that formula.
---------------------------------------------------------------------------
Further exploration of the modified Gallet and CRIEPI formulas
sheds additional light on this issue. The Gallet formula uses a gap
factor as one parameter. Southern Company used a gap factor of 1.3 in
its comparison. Although the comment stated that Southern Company based
the gap factor on rod-to-rod electrode configurations,
[[Page 20445]]
there is no record support for this value. The lowest value for the gap
factor provided in the Gallet paper was 1.36 (Ex. 0553). Had Southern
Company used a gap factor of 1.33 instead,\241\ the differences between
the equations would be generally smaller, and the high-voltage
``difference'' noted by Southern Company would not be apparent until
approximately 2,100 kilovolts. At system voltages higher than 242
kilovolts, IEEE Std 516-2009 uses a gap factor equivalent to 1.377,
which results in smaller rather than larger minimum air-insulation
distances at voltages between approximately 800 and 2,200 kilovolts
(Ex. 0532). Therefore, the Agency is rejecting Southern Company's
argument that the modified Gallet and CREIPI formulas show that the
extrapolation method is not sufficiently protective.
---------------------------------------------------------------------------
\241\ With no record support for a gap factor of 1.3, it appears
that Southern Company chose the gap factor arbitrarily. In this
example, OSHA has chosen an equally arbitrary gap factor simply to
show how the curves can be manipulated.
---------------------------------------------------------------------------
The concern about the lack of test data appears to be unfounded, at
least for the range of overvoltages addressed by the final rule. The
largest overvoltage addressed by the final rule is approximately 2,500
kilovolts, which corresponds to an 800-kilovolt system with a phase-to-
ground maximum per-unit transient overvoltage of 2.5 pu. The test data
for rod-to-rod gaps extends to 1,600 kilovolts. Thus, the data cover
about two thirds of the voltage range covered by the final rule, and
the test data provide substantial support for maximum transient
overvoltages of 1,600 kilovolts (which corresponds to an 800-kilovolt
system with a 1.5 per-unit maximum transient overvoltage) regardless of
whether the exposure is phase-to-phase or phase-to-ground. In addition,
the saturation factor varies almost linearly with voltage, as can be
seen from the table and graphs of voltage vs. saturation factor in the
IEEE reports on which Equation (1) is based (Exs. 0556, 0558). Figure 7
reproduces the relevant graphs in those papers.\242\ Thus, an
extrapolation of the saturation factor likely will produce reasonable
results.
---------------------------------------------------------------------------
\242\ This graph is Figure 1 in Ex. 0556 and Figure 2 in Ex.
0558.
---------------------------------------------------------------------------
BILLING CODE 4510-26-P
[[Page 20446]]
[GRAPHIC] [TIFF OMITTED] TR11AP14.011
BILLING CODE 4510-26-C
In addition, as noted earlier, the Gallet and CRIEPI formulas, the
other two formulas described by Southern Company for determining
sparkover voltages, have a similar shape. (See Figure 6.) The
extrapolation method might not be as conservative at the highest
voltages as the Gallet and CRIEPI formulas. However, because the
modified Gallet and CREIPI formulas rely on a gap factor that is
unsupported on the record, and because the gap factor adopted in IEEE
Std 516-2009 yields minimum approach distances that are less
conservative than the extrapolation method, the Agency believes that
the extrapolation method will provide adequate protection for workers.
For these reasons, OSHA concludes that it is reasonable to extrapolate
the test data to determine minimum approach distances. Consequently,
the final rule adopts the extrapolation method of determining minimum
approach distances by providing equations for calculating the
saturation factor, a, as described in the following paragraphs.
Drafts 9 and 10 of the 2009 revision of IEEE Std 516, as well as
the approved edition of that standard, provided linear equations for
the saturation factor. These equations varied depending on the voltage
range (Exs. 0524, 0525, 0532). IEEE Std 516-2009 limits the
[[Page 20447]]
equation for the highest range to transient overvoltages of 1,600
kilovolts (Ex. 0532).\243\ Drafts 9 and 10 of the 2009 revision of that
IEEE standard extrapolated the saturation factor by applying the
equation for the highest voltage range without limit (Exs. 0524, 0525).
OSHA notes that Drafts 9 and 10 of IEEE Std 516 used slightly different
equations for the calculation of the saturation factor than does IEEE
Std 516-2009 (Exs. 0524, 0525, 0532). The Agency compared the results
of the two sets of equations with the data from the original IEEE
reports on which Equation (1) is based and determined that the
equations from IEEE Std 516-2009 fit the data precisely. However, IEEE
Std 516-2009 notes:
---------------------------------------------------------------------------
\243\ It should be noted that, despite the 1,600-kilovolt
limitation, IEEE Std 516-2009 apparently applies this equation to
1,633 kilovolts (the maximum transient overvoltage on an 800-
kilovolt system with a 2.5 per-unit maximum transient overvoltage)
in the minimum approach distance tables in Appendix D of that
standard.
[T]here is a different value of the ``a'' [saturation] factor
for same voltage used to calculate MAID and MTID. To avoid having
values of the ``a'' factors for MAID and MTID, the working group
decided to use only the MTID ``a'' factor since it matches the
---------------------------------------------------------------------------
values of the ``a'' factor shown on the figure. [Ex. 0532]
Thus, the IEEE standard bases the saturation factor on the withstand
voltages with tools in the gap. OSHA believes that this approach is
appropriate for phase-to-ground exposures. However, for phase-to-phase
exposures, which almost never involve tools across the gap, the Agency
believes that this approach is unnecessarily conservative. Draft 9 of
the IEEE standard uses equations for the saturation factor based on
test data for air gaps without tools. Therefore, the final rule bases
the saturation factor on: (1) The equations from IEEE Std 516-2009 for
phase-to-ground exposures and (2) the equations in Draft 9 of that
standard for phase-to-phase exposures. Therefore, Table V-2 applies the
equations for the saturation factor, a, from IEEE Std 516-2009 to
phase-to-ground exposures, while using the equations for this factor
from Draft 9 of that standard for phase-to-phase exposures. To
extrapolate the saturation factor to the highest voltage addressed by
the final rule, OSHA is extending the application limit of Equation 59
from IEEE Std 516-2009. The Agency based these equations on the
assumption that no insulated tool or large conductive object are in the
gap. Note 3 to Table V-2 indicates that, if an insulated tool spans the
gap or if a large conductive object is in the gap, employers are to use
the equations for phase-to-ground exposures (with VPeak for phase-to-
phase exposures).
Circuits operating at 362.1 to 420 kilovolts. In the 2009 reopening
notice, OSHA noted that IEEE Std 516-2009 included an additional
voltage range, 362.1 to 420 kilovolts, in its minimum approach distance
tables; this range did not appear in OSHA's proposed rule (74 FR
46962). The Agency requested comments on whether it should add this
voltage range to the minimum approach tables in the final rule.
Rulemaking participants recommended adding this voltage range to the
OSHA standard, though no electric utilities responding to the issue
operated any system in this voltage range. (See, for example, Exs.
0545.1, 0548.1, 0551.1; Tr2. 93, 159.) Dr. Randy Horton, testifying on
behalf of EEI, stated:
OSHA should include these voltage ranges in the final [r]ule in
order to provide complete guidance to the industry. However, there
are not many lines that operate at these voltages within the
American electric utility industry. [Tr2. 93]
Although it appears that there are few, if any, electric power
transmission systems in the United States operating at 362.1 to 420
kilovolts, OSHA is including this voltage range in the final standard.
Otherwise, an employer with a system operating in this voltage range
would have to set minimum approach distances based on a maximum system
voltage of 550 kilovolts, the highest voltage in the next higher
voltage range listed in Table V-6. Even if systems operating in the
362.1- to 420-kilovolt range are extremely rare, OSHA is not requiring
employers to adhere to minimum approach distances that are
substantially higher than necessary to protect employees doing work at
those voltages. Therefore, OSHA decided to include the 362.1- to 420-
kilovolt range in Table V-6 in the final rule, which specifies
alternative minimum approach distances for worksites at an elevation of
900 meters or less. Employers not using that table can establish
minimum approach distances for any particular voltage, including
voltages in the 362.1- to 420-kilovolt range, using the equations in
Table V-2 for the maximum voltage on the particular circuit involved.
The electrical component of MAD--DC exposures. OSHA proposed
minimum approach distances for dc circuits in Table V-5. OSHA received
no comments on these minimum approach distances and, therefore, is
adopting them in Table V-7 of the final rule as proposed.
OSHA's requirements on minimum approach distances better effectuate
the purpose of the OSH Act than the national consensus standard.
Whenever a final rule differs substantially from an existing national
consensus standard, Section 6(b)(8) of the OSH Act requires OSHA to
publish a statement of reasons in the Federal Register explaining why
the final rule will better effectuate the purposes of the Act than the
national consensus standard. This final rule contains requirements for
minimum approach distances that differ substantially from those in the
2012 NESC, which the Agency determined is the current, relevant
national consensus standard.
Paragraph (g) of Sec. 1910.2 defines ``national consensus
standard''. There are currently two existing consensus standards
addressing minimum approach distances for electric power generation,
transmission, and distribution work: ANSI/IEEE C2-2012 and IEEE Std
516-2009. The 2012 NESC, which also is an IEEE standard, was approved
as an ANSI standard on June 3, 2011.\244\ IEEE Std 516-2009 is not
currently an ANSI standard, although the 2003 edition was an ANSI
standard.\245\ Many States adopt the NESC (Tr2. 151).\246\ Mr. Charles
Kelly of EEI called the NESC ``the preeminent National Consensus
Standard on clearance distances for electric utility work on high
voltage lines and equipment'' (Tr2. 73). Mr. James Tomaseski,
testifying on behalf of the NESC, called that document ``the authority
on safety requirements for power . . . systems'' (Tr2. 35). In
contrast, rulemaking participants characterized IEEE Std 516 as ``an
engineering document'' containing engineering principles and guidelines
[[Page 20448]]
(Tr2. 56; see also, for example, Tr2. 59, 74, 129-130, 174). However,
the NESC takes those engineering principles and produces work rules,
taking into account the practical effects of the requirements. (See,
for example, Tr2. 57, 73, 175-176.) OSHA, therefore, concludes that the
2012 NESC is the existing national consensus standard for the purposes
of Section 6(b)(8).
---------------------------------------------------------------------------
\244\ IEEE is the secretariat of the National Electrical Safety
Code, which IEEE adopted and which ANSI approved subsequently as a
standard. The official designation of the current version of the
National Electrical Safety Code is ANSI/IEEE C2-2012. Standards
approved as ANSI standards are American National Standards. In
addition, the ANSI approval process ensures that procedures used to
adopt standards conform to the procedures described in the
definition of ``national consensus standard'' in 29 CFR 1910.2(g).
See, for example, OSHA's adoption of national consensus standards
and established Federal standards under Section 6(a) of the OSH Act
(36 FR 10466, May 29, 1971).
\245\ IEEE standards frequently undergo the ANSI approval
process. After becoming an approved American National Standard, an
IEEE standard shares a joint ANSI/IEEE designation.
\246\ According to a survey conducted by IEEE, over 20 States
adopted the 2007 edition of the NESC, and several other States
adopted other editions of the NESC (http://standards.ieee.org/about/nesc/pucsurvey2007.pdf). The States generally enforce public safety
provisions of the NESC through public utility commissions. OSHA is
not aware of any States that adopted the updated consensus standard
since its most recent publication. OSHA anticipates that States will
adopt this edition of the NESC when they update their regulations.
---------------------------------------------------------------------------
The 2012 NESC sets its basic ac minimum approach distances in Table
441-1. This table divides minimum approach distances into two sets of
distances: one for voltages up to 72.5 kilovolts and the other for
voltages of 72.6 to 800 kilovolts. The minimum approach distances
applying to voltages of 72.5 kilovolts and less are the same for work
with and without tools between the employee and the energized part. The
minimum approach distances applying to voltages of 72.6 to 800
kilovolts vary depending on whether a tool spans the distance between
the employee and the energized part. The distances in Table 441-1 are
identical to the minimum approach distances in IEEE Std 516-2009 for
industry-accepted values of maximum transient overvoltage, and the NESC
limits the application of Table 441-1 to situations in which IEEE Std
516-2009 declares that industry-accepted values of maximum transient
overvoltage are valid, as described earlier in this section of the
preamble.
Table 441-1 in the 2012 NESC does not specify distances for phase-
to-phase exposures with tools or large conductive objects between the
employee and the energized part. In addition, the table applies only to
worksites at an elevation below 900 meters (3,000 feet). For higher
elevations, the 2012 NESC requires the employer to calculate minimum
approach distances using a formula equivalent to that in IEEE Std 516-
2009.
The 2012 NESC requires the employer to make an engineering analysis
to determine the minimum approach distance in two situations: (1) If
the employer uses phase-to-phase live line tools between the employee
and the energized part (Table 441-1, Note 8), and (2) if the employer
chooses to use an engineering analysis in lieu of using Table 441-1
(Rule 441A1). A note in the 2012 NESC reads: ``IEEE Std 516-2009
contains information that may be used to perform an engineering
analysis to determine minimum approach distances.''
The 2012 NESC bases its minimum approach distances on IEEE Std 516-
2009; and, as explained previously, the Agency concluded that the
minimum approach distances in IEEE Std 516-2009 expose employees to
additional risk of injury for various exposures. The IEEE standard sets
minimum approach distances for exposures at voltages of 72.5 kilovolts
and less that do not take account of tools or conductive objects in the
air gap. Consequently, OSHA determined that, for these voltages, the
IEEE method for calculating minimum approach distances, on which the
2012 NESC bases its minimum approach distances, does not protect
employees as well as the method for calculating minimum approach
distances specified in the final rule. The final rule ensures adequate
employee protection, even when tools or conductive objects are present
in the air gap. In addition, for phase-to-phase exposures at voltages
of more than 72.5 kilovolts, the Agency found that the method for
calculating minimum approach distances in IEEE Std 516-2009, on which
the 2012 NESC bases its minimum approach distances, does not use gap
factors that adequately represent the full range of employee exposures.
Furthermore, the 2012 NESC permits employers to use the industry-
accepted values for the maximum per-unit transient overvoltage without
ensuring that the maximum transient overvoltages at the worksite cannot
exceed those values. Although the 2012 NESC limits the use of the
industry-accepted values in some situations, the limitation does not
appear to apply to circuits such as the BPA circuit that exhibited
higher maximum per-unit transient overvoltages. Thus, OSHA concludes
that the 2012 NESC is not as effective as the final rule in protecting
employees against high maximum transient overvoltages. Because the
minimum approach distances contained in the final rule will better
protect employees than the distances specified in the NESC, the Agency
also concludes that the final rule will better effectuate the purposes
of the OSH Act than the NESC. Therefore, the Agency concludes that the
minimum approach distances required by the final rule, which account
for actual workplace conditions, will better protect employees than the
IEEE distances for these exposures.
Impacts of changes in minimum approach distances. The final rule
at Sec. 1926.950(d)(2), as well as Sec. 1926.960(c)(1)(ii) and
Table V-2, requires employers to determine the maximum per-unit
transient overvoltage for the systems on which employees will be
working. Existing Sec. 1910.269(a)(3) already contains a comparable
provision, requiring employers to determine existing conditions
related to the safety of the work to be performed, including maximum
switching transient voltages.
The maximum per-unit transient overvoltages addressed by the
existing standard are the industry-accepted values of 3.0 for voltages
up to 362 kilovolts, 2.4 for 552 kilovolts, and 2.0 for 800 kilovolts.
OSHA believes that, under the existing rule, most employers simply
assume these maximum per-unit transient overvoltages and set minimum
approach distances accordingly. As explained earlier, this final rule
raises the highest maximum transient overvoltages to 3.5 for up to 420
kilovolts, 3.0 for 550 kilovolts, and 2.5 for 800 kilovolts. OSHA
believes that some systems will accommodate the larger minimum approach
distances that will result from using these new, default values. Not
all systems will accommodate such changes, however. (See, for example,
Exs. 0573.1, 0575.1, 0577.1.) For phase-to-ground exposures, the
minimum approach distance could be as much as 2.35 meters (7.67 feet)
greater under the final rule than under Table R-6 in existing Sec.
1910.269. The existing minimum approach distance is 4.53 meters (14.9
feet) for phase-to-ground exposures on an 800-kilovolt system. The
final rule sets 6.88 meters (22.57 feet) as the largest minimum
approach distance for this voltage. (This increase is due to the use of
minimum tool distances, as well as the higher default maximum per-unit
transient overvoltage.) Consequently, OSHA believes that employers with
installations that will not accommodate these larger minimum approach
distances will either determine through engineering analysis or
establish through the use of portable protective gaps \247\ precise
maximum per-unit transient overvoltages on these installations so that
the installations will accommodate the required minimum approach
distances.
---------------------------------------------------------------------------
\247\ A portable protective gap is a device installed on a phase
conductor to provide a known withstand voltage. The gap is designed
to spark over at a low enough transient overvoltage to prevent
sparkover at the (reduced) electrical component of the minimum
approach distance at the work location (Ex. 0532).
---------------------------------------------------------------------------
For the systems that exhibit transient overvoltages that will not
accommodate the resultant minimum approach distances, OSHA concludes
that it is feasible for employers to either control the maximum
transient overvoltages, through the implementation of such measures as
portable protective gaps, circuit alterations, or operational controls
(including blocking reclosing and restricting circuit switching), or
deenergize the circuit to perform the work. (See, for example, Exs.
0532, 0548.1; Tr2. 114-115.)
[[Page 20449]]
The final economic analysis, in Section VI, Final Economic Analysis
and Regulatory Flexibility Analysis, later in this preamble, assumes
that electric utilities with circuits operating at 230 kilovolts or
more (including all circuits in the 169.1- to 242.0-kilovolt voltage
range \248\) will be affected by increases in minimum approach
distances at those voltages. Therefore, the Agency estimates that 10
percent of the circuits operating at 230 kilovolts or more will require
additional measures, such as installing portable protective gaps, that
permit employers to adopt minimum approach distances that their
circuits can accommodate.\249\ However, OSHA is not including any costs
for retrofitting or redesigning circuits or equipment for this purpose.
The Agency believes that such measures will be rare and undertaken only
when they are less costly than the alternatives or when necessitated
for reasons unrelated to requirements in the final rule. OSHA did not
include cost estimates for taking outages because the Agency concludes
that only rarely will other, less costly, measures be impractical.
---------------------------------------------------------------------------
\248\ As seen from Table R-6 in existing Sec. 1910.269 and
Table V-1 in existing Sec. 1926.950, existing electric power
circuits operate at 161 to 169 kilovolts and at 230 to 242
kilovolts. OSHA broadened the ranges in the corresponding tables in
the final rule in the unlikely event that electric utilities design
and install circuits operating at voltage between the listed voltage
ranges.
\249\ The final economic analysis estimates that 10 percent of
the ``projects'' (as that term is used in Section VI, Final Economic
Analysis and Regulatory Flexibility Analysis, later in this
preamble) performed by employers with circuits operating at 230
kilovolts or more will involve installing portable protective gaps
based on the assumption that projects are distributed
proportionately across affected and unaffected circuits.
Consequently, if 10 percent of the circuits operating at voltages of
230 kilovolts or more require ``additional measures, such as
installing portable protective gaps,'' then 10 percent of the
projects on those circuits will require such measures.
---------------------------------------------------------------------------
Several rulemaking participants maintained that adopting minimum
approach distances greater than the distances in existing Sec.
1910.269 would have a substantial effect on how employees perform
energized line work and possibly on whether they could perform it at
all. (See, for example, Exs. 0545.1, 0549.1, 0550.1, 0573.1, 0575.1;
Tr2. 53-55, 96-98.) Some of these comments related to climbing
structures, with the commenters claiming that employees would be
precluded from climbing some structures if the final rule substantially
increased minimum approach distances. (See, for example, Exs. 0549.1,
0573.1; Tr2. 54-55, 166.) For instance, Consolidated Edison reported
that larger minimum approach distances could prevent workers from
climbing towers on several of its lines and noted that clearances vary
from tower to tower (Ex. 0549.1). Consolidated Edison also maintained
that larger minimum approach distances might prohibit it from
positioning an employee on the tower with a live-line tool to perform
tasks such as installing cotter keys or removing debris (id.). EEI
argued that, if minimum approach distances exceeded the length of line
insulators, employees would not be permitted to use existing live-line
maintenance equipment without changing their work methods (Ex. 0545.1;
Tr2. 114-115). EEI and Consolidated Edison, among others, maintained
that larger minimum approach distances could increase the number of
outages. (See, for example, Exs. 0545.1, 0549.1.)
For each of the examples the commenters provided of situations in
which higher minimum approach distances might be problematic, the
worker would be at ground potential while located on a tower or other
structure. Thus, these comments relate solely to phase-to-ground
exposures. For these exposures, the final rule increases minimum
approach distances substantially under two conditions: (1) When the
maximum per-unit transient overvoltage exceeds the default maximums
under the existing standards,\250\ or (2) when insulating tools or
conductive objects are present in the air gap. In each case, the
employer can implement measures, such as using a portable protective
gap, to reduce the maximum per-unit transient overvoltage and,
consequently, the minimum approach distance. (See Appendix B to final
Subpart V for a discussion of the use of a portable protective gap to
reduce the required minimum approach distance. Appendix B to existing
Sec. 1910.269 recognizes this method of reducing the required minimum
approach distance.) In addition, when the employer can demonstrate that
there will be only air between the employee and the energized part,
which should normally be the case during climbing or inspection
procedures, Table V-2 permits the employer to determine minimum
approach distances using the equation based on minimum air-insulation
distances, which will produce smaller minimum approach distances than
the equation based on minimum tool-insulation distance.
---------------------------------------------------------------------------
\250\ The maximum per-unit transient overvoltages under existing
Sec. 1910.269 are 3.0 for voltages up to 362 kilovolts, 2.4 for 552
kilovolts, and 2.0 for 800 kilovolts.
---------------------------------------------------------------------------
Some rulemaking participants maintained that revised minimum
approach distances would result in costs related to the purchase of new
tools, revision of training programs, and retraining of employees.
(See, for example, Exs. 0545.1, 0548.1, 0550.1, 0551.1; Tr2. 94-95.)
For instance, American Electric Power commented:
The potential [cost impact] could be significant, especially
when considering the proposed changes and resulting implications on
the design standards. It is sufficient to state that changes in
minimum approach distances, that exceed the length of standard line
insulation, could require the re-tooling of live line maintenance
equipment (placing some live line maintenance currently done on hold
until new tooling is available); the development of new work methods
and the training/re-education that could be required; and could
impact current design standards (that are relatively common across
the industry). In some cases, on [extra-high-voltage] lines, it is
not possible to state that new tooling and procedures can be
established until maintenance experts have had adequate time to
fully evaluate the situation. [Ex. 0550.1]
OSHA included the costs of training employees in the requirements
of the standard, including the minimum approach-distance requirements,
in the economic analysis conducted for the proposed rule. (See 70 FR
34905-34910.) The proposal included revised minimum approach distances
that were in some cases greater than the distances specified in
existing Sec. 1910.269. OSHA's estimates for the proposed rule already
accounted for the costs associated with training employees in the
revised minimum approach distances, including any necessary changes in
procedures. Therefore, the Agency concludes that it is not necessary to
increase those cost estimates as a result of the changes made to the
minimum approach-distance provisions between the proposed and final
rules.\251\
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\251\ OSHA addressed the cost of retrofitting or redesigning
circuits or equipment earlier in this discussion. OSHA's conclusion
regarding these costs apply equally to American Electric Power's
comment regarding the need to purchase new live-line